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2015 DIGILAW 2455 (MAD)

Gurusamypillai v. Athinarayanan

2015-07-09

K.K.SASIDHARAN

body2015
ORDER This Civil Revision Petition is directed against the order dated 18 November, 2014, in E.A.No.149 of 2012 in E.P.No.83 of 2008, whereby and whereunder, the learned Subordinate Judge, Srivilliputhur, was pleased to dismiss the application filed by the petitioner to set aside the sale. SUMMARY OF FACTS: 2. The first respondent filed a suit in O.S.No.145 of 2005, on the file of learned Subordinate Judge, Srivilliputhur. It was a suit for recovery of money. The Trial Court passed a decree, directing the petitioner to pay a sum of Rs.5,37,268/-. 3. The first respondent filed Execution Petition in E.P.No.83 of 2008 to execute the decree. The Executing Court passed an order for the sale of mortgaged property to realise the decree amount. The bid submitted by the second respondent for a sum of Rs. 5,02,000/-was accepted by the Executing Court. 4. The petitioner, in the meantime, paid the entire decree amount to the decree holder and filed an application under Order 21 Rule 89 of Code of Civil Procedure. The learned Executing Judge dismissed the said application primarily on the ground that the application was made beyond the period of 60 days and it was not accompanied by the mandatory deposit. The petitioner challenges the legality and correctness of the order in E.A.No.149 of 2012. RIVAL SUBMISSIONS: 5. The learned counsel for the petitioner contended that the second respondent paid the balance amount of sale consideration on 25 November, 2011. The petitioner mobilized money and paid the entire decree amount along with the amount payable to the first respondent on 21 December, 2011. According to the learned counsel, the Executing Court, without recognizing the payment made to the decree holder, dismissed the application. The learned counsel contended that the application made on 23 January, 2012, should have been considered, in the light of the payment made to the decree holder on 21 December, 2011. 6. The learned counsel for the second respondent/auction purchaser justified the impugned order. According to the learned counsel, the petitioner filed the application on 23 January, 2012, without complying with the statutory requirements of Order 21 Rule 89 of Code of Civil Procedure. The learned counsel contended that the application itself was delayed by five days and as such, the learned Subordinate Judge was justified in dismissing the interlocutory application. THE ISSUE: 7. According to the learned counsel, the petitioner filed the application on 23 January, 2012, without complying with the statutory requirements of Order 21 Rule 89 of Code of Civil Procedure. The learned counsel contended that the application itself was delayed by five days and as such, the learned Subordinate Judge was justified in dismissing the interlocutory application. THE ISSUE: 7. The only question that arises for consideration is whether the learned Executing Judge was correct in dismissing the application filed under Order 21 Rule 89 of Code of Civil Procedure, on the ground that it was made beyond the period of 60 days, notwithstanding the fact that the entire decree amount and 5% of the boundage amount payable to the auction purchaser was paid to the decree holder within the statutory period. DISCUSSION: 8. The first respondent filed E.P.No.83 of 2008 to execute the decree in O.S.No.145 of 2005. The Executing Court conducted auction on 18 November, 2011. The second respondent was the successful bidder. The second respondent deposited 1/4 of the sale amount on 18 November, 2011. The balance amount was deposited on 25 November, 2011. The petitioner, in the meantime, paid a sum of Rs.7,00,000/-to the decree holder and obtained a receipt on 21 December, 2011. Thereafter, the petitioner filed an application in E.A.No.149 of 2012 under Order 21 Rule 89, on 23 January, 2012. 9. The learned Executing Judge considered the application under Order 21 Rule 89, taking into account the date of sale and the date of application filed by the petitioner to set aside the sale. While considering the question of delay, the learned Executing Court omitted to take into account the background facts relating to the payment made by the petitioner to the decree holder on 21 December, 2011. Even though the decree granted to the first respondent was for a sum of Rs.5,37,268/-, the fact remains that the property was sold only for a sum of Rs.5,02,000/-. The property was sold less than the actual price. In fact, the petitioner has taken up a contention that the house property valued about Rs. 20,00,000/-was auctioned for a lesser amount of Rs.5,02,000/-. 10. It is true that the application to set aside the sale was filed only on 23 January, 2012. The said application should be taken, in the light of the payment made to the decree holder on 21 December, 2001. 20,00,000/-was auctioned for a lesser amount of Rs.5,02,000/-. 10. It is true that the application to set aside the sale was filed only on 23 January, 2012. The said application should be taken, in the light of the payment made to the decree holder on 21 December, 2001. The second respondent deposited only a sum of Rs.5,02,000/-. The amount paid by the petitioner to the decree holder would include the sale amount and 5% of the amount payable to the auction purchaser. This vital aspect was omitted to be considered by the learned Executing Judge. In fact, the learned Executing Judge disbelieved the acknowledgement given by the decree holder in satisfaction of the decree on the ground that the receipt was produced before the Court only on 23 January, 2012. 11. Similar question came up for consideration before the Supreme Court in Challamane Huchha Gowda v. M.R.Tirumala [ 2004(1) SCC 453 ]. 12. In M.R.Tirumala's case, before the Executing Court, the judgment debtor, within a period of one month from the date of sale, paid the entire amount to the decree holder and filed the memo before the Executing Court to set aside the sale. Since formal application was not filed within the statutory period, the plea to set aside the sale was negatived by the Executing Court. The Supreme Court observed that the Executing Court failed to take into account the payment of entire decree amount to the decree holder with cost. The relevant observation reads thus: "9. Execution is the enforcement, by the process of the Court of its orders and decrees. This is in furtherance of the inherent power of the Court to carry out its orders or decrees. Order 21 of CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order 21 is the only means by which a judgment-debtor can escape from a sale that has been validly carried out. The object of the rule is to provide a last opportunity to put an end to the dispute at the instance of judgment-debtor before the sale is confirmed by the Court and also to save his property from dispossession. The object of the rule is to provide a last opportunity to put an end to the dispute at the instance of judgment-debtor before the sale is confirmed by the Court and also to save his property from dispossession. Rule 89 postulates two conditions: they are depositing : (1) of sum equal to five percent of the purchase money to be paid to the purchaser, (2) of the amount specified in the proclamation of sales less any amount received by the decree-holder since the date of such proclamation, in the Court. If these two conditions are satisfied, the Court shall make an order for setting aside the sale under Rule 92(2) of Order 21 CPC on an application made to it. In other words, then there will be compliance of Court's order or decree that is sought to be executed. Because the purpose of the Rule 21 is to ensure the carrying out of the orders and decrees of the Court, once the judgment -debtor carries out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said Rule. Therefore, upon the satisfaction of the compliance with conditions as provided under Rule 89, it is mandatory upon the Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons. 10. In the case on hand, it is not disputed that within the stipulated period of one month form the date of final bid in Court, the petitioner -judgment-debtor paid the decree amount to the decree-holder and also filed a memo for setting aside the sale in the form of objections. The executing court noted this aspect. By this payment the requirement under Rule 89(1) (b) of Order 21 was fulfilled. It is also noted that the Respondent 1 –auction purchaser refused to accept the solatium and he subsequently filed an application for confirmation of sale. Meanwhile, the executing Court ordered for the deposit of solatium with the Court. This deposit complied with the second requirement under Rule 89(1) (a) of Order 21. It is also noted that the Respondent 1 –auction purchaser refused to accept the solatium and he subsequently filed an application for confirmation of sale. Meanwhile, the executing Court ordered for the deposit of solatium with the Court. This deposit complied with the second requirement under Rule 89(1) (a) of Order 21. Admittedly, on 25/09/1992 the Petitioner -judgment-debtor filed his objections to the sale and also paid the entire decree amount together with the cost to the Respondent 2 -decree-holder. The factum of the payment of entire decree amount to the decree-holder with cost was not looked into by the first appellate Court or by the High Court nor did it attach any value to the memo of Objections for setting aside sale. It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application. Since there is no bar in treating the objection (filed in the present case) as an application for setting aside the sale, the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter, it is not necessary to look into other aspects agitated by the contesting parties nor to look into the authorities cited before us. Accordingly the order of the High Court affirming that of the first appellate Court is set aside and order of the executing Court is restored." 13. This is rather a hard case of a judgment debtor arranging the money with difficulties and paying it to the decree holder even before the expiry of 60 days from the date of sale. The petitioner has paid more than the amount payable to the decree holder. Even then, he was not given his property back on account of a too technical view taken by the Executing Court. 14. The Executing Court failed to consider the receipt issued by the decree holder solely on the ground that it was produced at a later point of time. 15. The learned Executing Judge failed to consider the material fact that Order 21 Rule 89 of the Code of Civil Procedure was enacted to provide a final opportunity to the Judgment debtor to save his property by making payment. 15. The learned Executing Judge failed to consider the material fact that Order 21 Rule 89 of the Code of Civil Procedure was enacted to provide a final opportunity to the Judgment debtor to save his property by making payment. In view of the background facts, especially, the payment of entire decree amount to the decree holder, along with the amount payable to the auction purchaser, even before the expiry of the period prescribed for filing the application to set aside the sale, I am of the considered view that the learned Executing Judge was not correct in dismissing the application. I am, therefore, of the view that the petitioner must succeed. DISPOSAL: 16. In the result, the order dated 18 November, 2014, is set aside. The sale held on 18 November, 2011, is also set aside, on account of the payment of entire decree amount to the decree holder. The second respondent/auction purchaser is permitted to withdraw the entire amount from the Executing Court with accrued interest. 17. The Executing Court is directed to pass an order by reopening the Execution Petition to cancel the sale Certificate and registration of the same before the Sub-Registrar, Srivilliputhur and re-deliver the property to the petitioner, within a period of one week from the date of receipt of a copy of this order. 18. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed.