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Andhra High Court · body

2013 DIGILAW 513 (AP)

Harijana Mukeeranna v. B. Thimmothi

2013-07-05

SAMUDRALA GOVINDARAJULU

body2013
Judgment : The auction purchaser in execution sale is the revision petitioner herein. He is aggrieved by the action of executing Court in setting aside the auction sale under Order XX1 Rule-89 C.P.C. at the instance of the 1st respondent herein who is a third party. The 2nd respondent who is the decree-holder brought the E.P. schedule property belonging to the respondents 3 and 4 who are judgment-debtors in execution of money decree against them. In the execution proceedings, the executing Court, after following the procedure prescribed by law, conducted auction sale in which the revision petitioner became the highest bidder and he complied with the deposit of the purchase money as per law. While so, the 1st respondent herein, claiming to be having right in the property sold in Court auction, filed the petition in the executing Court under Order XXI Rules 89,90 and 91 C.P.C. for setting aside Court auction sale held on 17-01-2008. The rights or claims of the 1st respondent herein in the auctioned property are immaterial since an application under Rule-89 for setting aside the sale can be filed by any person claiming interest in the property. Even though the 1st respondent herein filed application under Rules 89, 90 and 91, the executing Court considered the application under Rule 89 only. Rule 91 cannot be invoked by any party as it is a provision for the auction purchaser for setting aside the sale in his favour. Rule 89 (2) prohibits pursuing of two remedies, one under Rule 89 and the other under Rule 90 in the following terms: - “Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.” Therefore, the executing Court rightly considered the application under Rule 89 only. It has to be seen whether there is sufficient compliance of requirements under Rule 89 before the executing Court exercising powers of setting aside the Court auction sale there under. The petition was filed in the executing Court by the 1strespondent herein within 60 days of the Court auction sale. But along with the petition, the 1st respondent herein did not deposit the entire E.P. amount and 5% of purchase money. The petition was filed in the executing Court by the 1strespondent herein within 60 days of the Court auction sale. But along with the petition, the 1st respondent herein did not deposit the entire E.P. amount and 5% of purchase money. Along with the petition, the 1st respondent herein paid 50% of the E.P. amount and filed another petition therein for extension of time for deposit of balance of the amount. Total E.P. amount was Rs.2,16,712/-. In the Court auction sale, the property was sold for Rs.5,72,500/-, 5% thereof comes to Rs.28,625/-. Rule 89 (1-a) contemplates the applicant to pay into the Court, 5% of the purchase money for payment to the purchaser and amount specified in the sale proclamation for recovery of which the sale was held, for payment of the same to the decree holder. It is now well settled that in view of the Mohan Lal Vs.Hari Prasad Yadav (1994) 4 SCC 177 ) of two judges Bench of the Supreme Court and also DadiJagannadham Vs. Jammulu Ramulu and others (2001) 7 SCC 71 ) of five Judges Bench of Supreme Court, application under Rule 89 can be filed and the amounts specified in Rule 89 (1) can be deposited within (60) days of the date of auction sale. Rule 92(2) was also amended to that effect by the amending Act 22 of 2002, which came into effect on 01-07-2002. The executing Court allowed application of the 1st respondent herein extending time for deposit of balance amount under rule 89 (1) upto 15-06-2009. The total amount to be deposited by the 1st respondent herein under Rule 89 (1) (a) and (b) is Rs.2,16,712+Rs.28,625/- totalling Rs.2,45,337/-. Along with the petition under Rule 89, the 1st respondent herein deposited only Rs.1,08,356/- and subsequently deposited balance of Rs.1,36,981/- by 15-06-2009. Therefore, the question to be considered herein is whether amounts deposited by the 1st respondent/claimant are in accordance with Rules 89 and 92 CPC and whether the Courts below are justified in setting aside the Court auction sale under Rule 89. Therefore, the question to be considered herein is whether amounts deposited by the 1st respondent/claimant are in accordance with Rules 89 and 92 CPC and whether the Courts below are justified in setting aside the Court auction sale under Rule 89. Rule 89(1) reads as follows: “Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five percent of the purchase-money, and (b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.” Rule 92 (2) reads as follows:-“Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under rule89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale. Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired the commencement of the Code of Civil Procedure (Amendment) Act, 2002.” From the above provisions, it is clear that the deposit required under Rule 89 1(a) and (b) has to be made by the applicant within 60 days from the date of sale. In this case, the 1st respondent herein, who is the claimant, did not make deposit of the entire amount as contemplated under Rule-89 1(a) and (b) within 60 days. In this case, the 1st respondent herein, who is the claimant, did not make deposit of the entire amount as contemplated under Rule-89 1(a) and (b) within 60 days. Instead, he deposited Rs.1,08,356/-along with the application out of the total amount of Rs.2,45,337/- payable , and filed an application before the executing Court for permission to deposit balance of the amount subsequently. The executing Court granted permission to deposit balance of the amount to the extent of Rs.1,36,981/- on or before 15-06-2009. The 1st respondent/claimant deposited the said balance of Rs.1,36,981/- by the date of 15-06-2009. Second deposit of Rs.1,36,981/- was beyond 60 days of the Court auction sale. Further question, which arises, is whether executing Court has got power to grant or extend the time specified in Rule 92 (2). Language of the said sub Rule-2 of Rule 92 reads that it is only in case where the amount deposited under Rule 89 was found to be deficit owing to any clerical or arithmetical mistake on the part of depositor, the executing Court has got power to condone the delay in deposit of the deficit amount that was made good within the specified time by the executing Court. In case the claimant was not able to deposit the total amount as per Rule 89(1) (a) (b), there is no provision or power for the executing Court to extend time for deposit of the said amount which was not deposited by the applicant for reasons other than clerical or arithmetical mistake. This Court is of the opinion that order of the executing Court extending time to the 1st respondent-claimant for deposit of major part of the amount to be deposited as per Rule 89 (1) (a) (b) upto 15-06-2009 is without jurisdiction and erroneous. The 1st respondent-claimant cannot take shelter under the said erroneous order passed by the executing Court. It is his primary duty to deposit the total amount of Rs.2,40,337/- within 60 days of 17-01-2008 along with the petition filed for setting aside the sale under Rule 89 CPC since the said mandatory requirement under Rules 89 and 92 is not complied with, the Courts below erred in law in setting aside the Court auction sale. The impugned orders passed by the Courts below are erroneous in law and on facts. The impugned orders passed by the Courts below are erroneous in law and on facts. In the result, the revision petition is allowed setting aside the orders passed by the Courts below and dismissing the application filed by the claimant-1st respondent herein for setting aside the Court auction sale dated 17-01-2008. The executing Court is directed to pass consequential order under Order XXI rule 92 CPC.