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2011 DIGILAW 76 (AP)

V. Vedanda Vysulu v. K. Purushotham

2011-01-31

N.R.L.NAGESWARA RAO

body2011
Judgment : 1. The Civil Revision Petition was filed by the judgment debtors against the order in E.A.No.886 of 2008 in E.P.No.1097 of 2005 in O.S.No.65 of 2003 on the file of Principal Junior Civil Judge, Kurnool. The application was filed for seeking permission to deposit the cost of Non-Judicial Stamps for preparation of the sale certificate in E.P.No.1097 of 2005 in the suit O.S.No.65 of 2003. 2. The facts of the case are, the decree-holder has obtained a decree against the judgment debtors and in pursuance of the decree, brought certain properties for sale and an auction was conducted on 04-12-2007, in which the auction purchaser, who is the first respondent in this revision, purchased the property, being the highest bidder, and deposited 1/4th of the bid amount i.e., Rs.1,21,250/- and thereafter deposited the balance of the 3/4th amount of Rs.3,63,750/- on 15-12-2007 and when made enquiries about the other formalities about the registration etc., he was informed that the formalities will be verified and he was asked to attend the Court on 18-12-2007. He attended the Court on 18-12-2007 and he was not called and at about 6-00 P.M., he was informed that the matter was postponed as the decree-holder has filed full satisfaction memo. He was informed at that time that he will be informed about the registration fees etc., after confirming the sale in view of the full satisfaction memo. There was collusion between the judgment debtors and decree holder and full satisfaction memo was filed on 18-02-2007. The auction purchaser attended the Court on 17-01-2008 after receipt of a notice and he filed the present application for confirmation of the sale and the judgment debtors came up with an application to set aside the sale under Order XXI, Rule 89 of Civil Procedure Code (for short “C.P.C.”). The application filed by the judgment debtors is E.A.No.322 of 2008. The auction purchaser filed E.A.No.332 of 2008 and the sale was confirmed on 19-06-2008. The judgment debtors have not deposited the 5% of the auction money as required for an application under Order XXI, Rule 89 of C.P.C. But the auction purchaser has not deposited the registration fees on Non-Judicial Stamps and there was no wilful neglect and it was bona fide. The present E.A.No.886 of 2008 was filed for extending time for deposit of the non-judicial stamps. 3. The present E.A.No.886 of 2008 was filed for extending time for deposit of the non-judicial stamps. 3. Respondents 2 to 5 filed counter contending that the present application is not maintainable while disputing several of the allegations made in the petition for extension of the time. The amount was paid to the decree-holder and the decree was satisfied. There is no need for the judgment debtors to deposit 5% of the purchase money as the matter was settled outside the Court. Therefore, the judgment debtors pleaded for the dismissal of the application. 4. Both sides did not adduce any evidence and the learned Principal Junior Civil Judge allowed the petition extending the time for deposit of the non-judicial stamps on the present market value to engross the sale certificate. 5. Aggrieved by the said order, the judgment debtors have preferred this revision. 6. The only point that arises for consideration is whether the order of the lower Court in extending the time for deposit of the non-judicial stamps for engrossing the sale certificate is legal and sustainable? 7. POINT: Most of the contentions raised by the auction purchaser is about the equity and bona fides and lack of knowledge of the procedural law. But, the fact remains even before the present application is filed, he has engaged an advocate and an application E.A.No. 332 of 2008 was filed through the counsel for confirmation of the sale and the sale was confirmed on 19-06-2008. When the auction purchaser has engaged an Advocate, it cannot be presumed that the Advocate was not informed about the failure to deposit the value of the non-judicial stamps, when particularly the auction purchaser claims that he attended the Court and made enquiries about the further obligations on his part. Therefore, when the application was filed for confirmation of the sale also, no attempt was made to deposit the non-judicial stamps. Evidently, the sale was confirmed on 19-06-2008. If that is to be so, even before the required stamps were deposited, the sale was confirmed, which is not at all valid or proper. It is not known as to under what provision such application can be allowed by the Court. Further more, it is also to be mentioned that when specific mandatory provisions are provided in the C.P.C., invoking all the discretionary powers under Section 148 or 151 of C.P.C., does not arise. It is not known as to under what provision such application can be allowed by the Court. Further more, it is also to be mentioned that when specific mandatory provisions are provided in the C.P.C., invoking all the discretionary powers under Section 148 or 151 of C.P.C., does not arise. A party, who is at fault and who cannot be presumed to be innocent in prosecuting the case cannot call in aid the equities. 8. To answer the controversy in this case, it is useful to refer to Order XXI, Rule 85 of C.P.C., which is amended by our State, which reads as follows: “85. Time for payment in full of purchase-money- The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule.72”. 9. Therefore, it is mandatory to the auction purchaser to deposit the entire balance of 3/4th sale consideration and also the value of the non-judicial stamps for engrossing the sale certificate. In this connection, it is useful to refer to the decision reported in J.Malla Reddy Vs. I.Shanthamma and others 2009(5) ALD 379 (DB), which dealt with the scope of the provisions under Order XXI, Rules 90 and 92 of C.P.C., and also extending the time for deposit of the bid amount etc. It was also held that failure to comply with the mandatory provisions, vitiate the sale and even without an application to set aside the sale, it is the duty of the Court to set aside the sale. Therefore, it clearly goes to show that the mandatory provisions under Order.XXI, Rule.85 of C.P.C., cannot be waiver. Reliance was placed on the decision of the Hon’ble Supreme Court in M.M.Shah Vs. Syed Mohammed AIR 1954 SC 349 , wherein it was held that the provisions are mandatory. 10. Touching directly on the point is another decision of our Division Bench in Mudragada Suryanarayanamurti Vs. Reliance was placed on the decision of the Hon’ble Supreme Court in M.M.Shah Vs. Syed Mohammed AIR 1954 SC 349 , wherein it was held that the provisions are mandatory. 10. Touching directly on the point is another decision of our Division Bench in Mudragada Suryanarayanamurti Vs. Southern Agencies, Rajahmundry and another AIR (AP) (2003) 215, ALD 2 (2003) 93, wherein it was held that when deposit of full amount required for general stamp for sale certificate is not deposited by the auction purchaser, the sale is nullity and the property has to be re-sold and time for deposit cannot be extended. 11. It is also useful to refer the decision reported in Kudiyala Ramana Vs. Vattikolla Somaraju AIR 1962 ANDHRA PRADESH 271 (V 49 C 74), wherein the question of bona fides and the failure to deposit the money by the auction purchaser along with the non-judicial stamps was considered and it was also held that there is no power for extension of the time, bona fides cannot be considered, which is the bone of contention of the counsel of auction purchaser. 12. In fact, the same principle was followed in the decision reported in Dasarla Koteswaramma Vs. Alla Venkayamma 2009(6) ALT 249 , which also reiterates that no extension can be granted for deposit of the money. Therefore, the law is well settled that in default of deposit of 3/4th of the sale consideration or default in deposit of amount required for purchase of stamps for sale certificate within 15 days as per the State amendment under Order XXI Rule 85 of C.P.C., the sale is nullity and further steps have to be followed by the Court. The extension of time is not valid. The failure to file an application for setting aside the sale does not arise since it is the duty of the Court to order re-sale. 13. The learned Principal Junior Civil Judge did not take into consideration the above law and did not apply properly to the facts of the case. If there are attachments over the money in deposit, the auction purchaser has got all rights to recover the same from the judgment debtors. Therefore, the order of the lower Court suffers from infirmity. 13. The learned Principal Junior Civil Judge did not take into consideration the above law and did not apply properly to the facts of the case. If there are attachments over the money in deposit, the auction purchaser has got all rights to recover the same from the judgment debtors. Therefore, the order of the lower Court suffers from infirmity. However, the revision petitioners are directed to deposit the amounts, which were deducted from the auction money belonging to the auction purchaser with interest at 12% per annum, failing which, it can be recovered as a decree against the judgment debtors. The balance amount, which is in deposit, shall be returned to the auction purchaser along with the value of the non-judicial stamps said to have been deposited in pursuance of the order of the Court. 12. Accordingly the Civil Revision Petition is allowed. There shall be no order as to costs.