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2013 DIGILAW 2824 (MAD)

M. v. R. Sriprasanna VS A. S. Balakrishnasamy

2013-08-02

P.R.Shivakumar

body2013
ORDER Though the first respondent in the revision petition (Judgment-debtor) was served with a notice and his name stands printed in the cause-list, none appears on his behalf. The auction purchaser, who came out as successful bidder in the Court auction sale, is the revision petitioner. The decree-holder is the second respondent in the Civil Revision Petition. Both of them are represented by counsel. 2. The submissions made by the counsel representing the revision petitioner and the counsel representing the second respondent/decree-holder are heard. 3. Admittedly, the second respondent/ decree-holder got a decree for recovery of money from the first respondent/judgment-debtor in O.S.No.605 of 2005, on the file of the Additional District Munsif, Madurai. As the decree was not satisfied, the second respondent herein/decree-holder levied execution by filing E.P.No.7 of 2009, in which the property of the judgment-debtor was attached and brought for sale. In the Court auction sale held on 17.04.2012, the revision petitioner emerged as the successful bidder and the sale was concluded in his favour. In accordance with the auction conditions, the revision petitioner/auction purchaser deposited the part of the amount, to be paid on a particular day, before the said date and balance within the time allowed. 4. The Judgment-debtor, who is the first respondent herein, thereafter choose to file an application in E.A.No.112 of 2012 under Order 21 Rule 90 of C.P.C. to set aside the sale on the ground of irregularities in the conduct of sale. While the said petition was pending, he filed another application in E.A.No.121 of 2012 under Order 21 Rule 89 of C.P.C. to set aside the sale on deposit of the decree amount payable to the decree-holder and the amount payable to the auction purchaser. Both the applications were taken up together and by an order dated 04.09.2012, the learned Additional District Munsif, Madurai Town, dismissed E.A.No.112 of 2012 (petition filed under Order 21 Rule 90 C.P.C.,) on merits holding that the petitioner therein was not able to prove any irregularity in the conduct of sale. Thereafter, on the same day, the learned Additional District Munsif, Madurai Town, passed an order in E.A.No.121 of 2012 directing the judgment-debtor to deposit the decree amount and the amount payable to the auction purchaser as per Order 21 Rule 89 of C.P.C., on or before 06.09.2012 as a condition for setting aside the sale. Thereafter, on the same day, the learned Additional District Munsif, Madurai Town, passed an order in E.A.No.121 of 2012 directing the judgment-debtor to deposit the decree amount and the amount payable to the auction purchaser as per Order 21 Rule 89 of C.P.C., on or before 06.09.2012 as a condition for setting aside the sale. The present Civil Revision Petition has been filed challenging the said order dated 04.09.2012 made in E.A.No.121 of 2012. 5. Mr.R.A.Mohanram, learned counsel for the revision petitioner/auction purchaser would contend that the application under Order 21 Rule 89 of C.P.C., itself was not maintainable in view of the pendency of the application filed under Order 21 Rule 90 of C.P.C., which application was not withdrawn by the judgment-debtor before filing E.A.No.121 of 2012. It is the further contention of the learned counsel for the revision petitioner that the requirement of depositing the amount payable to the decree-holder under the decree and 5% of the purchase money to the purchaser is a condition precedent for filing a petition under Order 21 Rule 89 of C.P.C., and since the judgment-debtor did not deposit on the date of filing of the said application, the entertainment of the said petition itself was not proper and on that score also, the said petition should have been dismissed as not maintainable. Learned counsel for the revision petitioner contended further that for availing the benefit of Rule 89, the judgment-debtor or any person claiming an interest in the property or anybody espousing such interest of such person should have deposited the abovesaid amount within sixty days from the date of conclusion of sale and such a requirement is a condition precedent for entertainment of an application under the said Rule and that the very fact that the first respondent/ judgment-debtor failed to make a deposit within sixty days and simply filed the petition seeking permission of the Court to deposit the amount, would show that there was failure on his part to comply with the mandatory condition/condition precedent for the entertainment of an application under Order 21 Rule 89 of C.P.C. 6. Mr.T.R.Subramanian, learned counsel for the second respondent/Decree-holder also supports the contentions raised by the learned counsel for the revision petitioner. 7. Mr.T.R.Subramanian, learned counsel for the second respondent/Decree-holder also supports the contentions raised by the learned counsel for the revision petitioner. 7. This Court after going through the relevant provisions finds force and substance in the above said submission made by the learned counsel for the revision petitioner, which is also supported by the learned counsel for the second respondent/ decree-holder. As rightly contended by the counsel for the revision petitioner, during the pendency of the petition filed under Order 21 Rule 90 C.P.C. no application under Order 21 Rule 89 C.P.C. could be filed. Order 21 Rule 89(2) C.P.C., itself makes it a condition for filing or prosecuting an application under the said Rule, that any application filed by the same person under Rule 90 should be withdrawn before the filing of the application under Rule 89. In case it was filed prior to the filing of the application under Rule 90, the application under Rule 89 cannot be prosecuted, unless the application under Rule 90 is withdrawn. 8. In this case, E.A.No.112 of 2012 was filed under Order 21 Rule 90, much earlier than the date of filing of E.A.No.121 of 2012 (application under Rule 89). Therefore, the very filing of the application after the filing of the previous application under Rule 90, without withdrawing the former application, is improper and is in violation of the condition provided in Order 21 Rule 89(2) of C.P.C. Not content with such violation, the first respondent/ Judgment-debtor, after filing E.A.No.121 of 2012 did not choose to withdraw the earlier petition in E.A.No.112 of 2012 filed under Rule 90 and pursued the said petition, which was dismissed on merit on 04.09.2012. Having invited an order on merit in the application under Rule 90, the first respondent/Judgment-debtor has made himself ineligible to prosecute the application under Rule 89, even if it is assumed that the same had been filed prior to the filing of the application under Rule 90. 9. The third contravention is that the condition precedent for filing an application under Rule 89 has been violated. 9. The third contravention is that the condition precedent for filing an application under Rule 89 has been violated. Rule 89(1) says that any person claiming an interest in the property sold in execution of a decree at the time of sale or at the time of making the application may apply to have the sale set aside on his depositing in Court a sum equal to 5% of the purchase money to be paid to the auction purchaser and the amount specified in the proclamation of sale for payment to the decree-holder. Order 21 Rule 92(2) prescribes sixty days as the time for the deposit of the abovesaid amount required to be deposited under Rule 89 and the sixty days time shall be counted from the date of sale. 10. A conjoint reading of Rule 89 and Rule 92 will make it clear that the condition requiring deposit of the amount specified in sub-clause 1 of Rule 89 within sixty days from the date of sale is a condition precedent for the filing of an application under Rule 89. This has been held so in so many cases and in a recent Judgment by the Hon'ble Supreme Court in Ram Karan Gupta vs. J.S. Exim Ltd and others reported in 2012(6) CTC 710. In the said Judgment, the Hon'ble Supreme Court has made it crystal clear that the filing of an application within sixty days will not be enough and the deposit ought to have been made within sixty days from the date of sale and in the event of failure to do so, the fact that an application was filed will not be a justification for the Executing Courts not to confirm the sale and that once it is proved that the interested person, who wants the sale to be set aside under Rule 89, has not complied with the abovesaid condition, it is imperative to pass an order confirming the sale, unless the sale is bound to be set aside under some other provision. 11. 11. In this case, as rightly pointed out by the learned counsel for the revision petitioner, besides entertaining the application under Rule 89 when the earlier application filed under Rule 90 was not withdrawn, the Executing Court passed an order in E.A.No.121 of 2012 granting time beyond sixty days from the date of sale to deposit the amount specified in the proclamation and 5% of the sale amount. The learned Additional District Munsif, Madurai Town, either in ignorance of the provision or in disregard for the provision, seems to have acted in derogation of such a provision which will vitiate the proceedings. The learned Additional District Munsif, ought to have rejected the application filed under Order 21 Rule 89 of C.P.C. on the first respondent's failure to make payment of the abovesaid amount within the period stipulated under Rule 92(2). 12. For all the reasons stated above, this Court comes to the conclusion that the revision is bound to succeed and accordingly, the Civil Revision Petition is allowed and the impugned order dated 04.09.2012 made in E.A.No.121 of 2012 by the Additional District Munsif, Madurai is set aside, with the result that the application in E.A.No.121 of 2012 shall stand rejected as not maintainable. No costs. 13. The decree-holder shall be permitted to withdraw the amount due to him under the decree from the sale price deposited by the auction purchaser.