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2019 DIGILAW 1272 (JHR)

Damyanti Devi v. Chandra Shekhar Rai

2019-07-12

H.C.MISHRA

body2019
JUDGMENT : H.C. Mishra, J. Heard learned counsel for the defendant petitioner and learned counsel for the auction purchaser O.P. 2. This revision is directed against the order dated 11th December, 2015, passed by learned Addl. District Judge-IV, Bokaro, in Misc. Civil Appeal No. 9 of 2014, allowing the appeal filed by the auction purchaser O.P., and setting aside the order dated 17.4.2012, passed by the learned Sub-Judge-IV, Bokaro, in Misc. Case No. 41 of 2003, filed by the defendant petitioner under Order XXI Rules 90 and 92, read with Section 151 of the Code of Civil Procedure, whereby the auction sale of her property made in favour of the auction purchaser O.P., was set aside by the learned Sub-Judge, and recovery of possession of half portion of the house in question, in favour of the petitioner Damyanti Devi was ordered. 3. The facts of this case, as revealed from the impugned order, are that, one Ram Dayal Singh had filed a title suit, bearing Title Suit No. 28 of 1992, against Surajdeo Prasad Verma and his wife, the present petitioner, namely, Damyanti Devi, for realization of Rs. 40,000/- from the aforesaid defendants and also for an injunction against the defendants from transferring the suit property detailed in schedule to the plaint. The case of the plaintiff Ram Dayal Singh was that he had given the friendly loan of Rs. 40,000/- to the defendants on their demand, which was not being refunded to the plaintiff. Upon notice, both the defendants appeared in the suit and filed their joint written statement, but they did not adduce any evidence. The plaintiff examined the witnesses in the suit, who were cross-examined on behalf of the defendants, but no evidence was adduced by the defendants, and the suit was decreed in favour of the plaintiff through Judgment and Decree dated 28.8.1997, directing the defendants to pay the decreetal amount with simple interest @ 12% per annum. 4. The plaintiff examined the witnesses in the suit, who were cross-examined on behalf of the defendants, but no evidence was adduced by the defendants, and the suit was decreed in favour of the plaintiff through Judgment and Decree dated 28.8.1997, directing the defendants to pay the decreetal amount with simple interest @ 12% per annum. 4. When the decree was not satisfied by the judgment debtors, the plaintiff decree holder filed the Execution Case No. 8 of 1997, in which, the house belonging to the judgment debtors, situated in Mauza Chas, Khata No. 418/51, Plot No. 6970, area 1-7/8 decimals, was attached and ultimately, the same was sold through auction sale by the Court, which was purchased by the purchaser O.P., Chandra Shekhar Rai, being the highest bidder for the property, in the auction sale. The auction sale was confirmed by the Executing Court by order dated 26.7.2001, and the certificate of sale was also issued on 17.10.2001, in favour of the purchaser O.P., Chandra Shekhar Rai. 5. Subsequently, the defendant petitioner Damyanti Devi, the wife of other defendant, filed the Misc. Case No. 41 of 2003, in the Court of Sub-Judge, Bokaro, praying for setting aside the sale of the half portion of the suit property, claiming that the same stood in her name, and for directing the auction purchaser to vacate the possession of the property. The learned Sub-Judge, Bokaro, by order dated 17.4.2012, declared the auction sale of the petitioner's property illegal, and also ordered for recovery of the possession of the half portion of the house in favour of the petitioner Damyanti Devi. 6. Aggrieved by that order, the purchaser Chandra Shekhar Rai preferred civil revision before this Court, which was subsequently converted into the miscellaneous appeal and was numbered as Misc. Appeal No. 220 of 2013. By order dated 11.2.2014 passed therein, the memo of appeal was returned to the appellant Chandra Shekhar Rai, on the ground of valuation and jurisdiction of hearing the appeal, giving liberty to present the same before the District Judge, Bokaro. This is how the miscellaneous appeal was filed before the District Judge, Bokaro, which was ultimately decided by the impugned order dated 11.12.2015, passed by the learned District Judge-IV, Bokaro, setting aside the order passed by the learned Sub-Judge-IV, Bokaro, in Misc. Case No.41 of 2003, thus allowing the appeal. This is how the miscellaneous appeal was filed before the District Judge, Bokaro, which was ultimately decided by the impugned order dated 11.12.2015, passed by the learned District Judge-IV, Bokaro, setting aside the order passed by the learned Sub-Judge-IV, Bokaro, in Misc. Case No.41 of 2003, thus allowing the appeal. Aggrieved thereby, the defendant petitioner has preferred this revision before this Court. 7. Learned counsel appearing for the defendant petitioner submitted that the impugned order passed by the learned Appellate Court below is absolutely illegal and cannot be sustained in the eye of law, inasmuch as, the judgment debtor Damyanti Devi had never received any notice of the Execution Case No. 08 of 1997. It is submitted that half of the house property stood in the name of the present petitioner and the suit was decreed only against her husband and accordingly, her share in the house could not be attached and sold in execution of the decree. It is the specific case of the learned counsel for the petitioner that the decree was passed only against her husband and not against her. This statement is made by learned counsel for the defendant petitioner, in view of the fact that it is stated in the Judgment and Decree dated 28.8.1997, passed in Title Suit No. 28 of 1992, that 'the defendant is directed to pay the decreetal amount with simple interest at the rate of 12% per annum within sixty days'. It is submitted that since the word 'defendants' has not been used in the judgement and decree, it would entail that the judgment was passed only against the defendant No.1, i.e., the husband of the present petitioner and not against her, who was admittedly the defendant No.2 in the said suit. 8. Learned counsel for the purchaser opposite party, on the other hand, has opposed the prayer, submitting that there is no illegality in the impugned order passed by the learned Appellate Court below, inasmuch as, the learned Sub-Judge had no jurisdiction to pass the order under Order XXI Rule 90 of the Code of Civil Procedure, after the sale had become absolute and the sale certificate had also been issued. It is also submitted that the purchase money was not deposited by the petitioner in the Court below while making the application for setting aside the auction sale, and in that view of the matter, the application filed by the defendant petitioner could not have been entertained by the learned Sub Judge-IV, Bokaro. It is also submitted that in the title suit filed by the decree holder Ram Dayal Singh, Damyanti Devi and her husband, both were defendants and the suit was decreed and as such, both the defendants were the judgment debtors in the suit. She had also filed a joint written statement with her husband in the suit, and the Vakalatnama was also filed by them jointly. It is also pointed out that during the pendency of the execution proceeding in Execution Case No. 8 of 1997, a miscellaneous case was filed by both the judgment debtors, but after filing the miscellaneous case, they never turned up for hearing of the same and the same was dismissed, and ultimately, the property was auction sold in execution of the decree. Learned counsel accordingly, submitted that there is no illegality in the impugned order passed by the learned Appellate Court below, setting aside the order passed by the learned Sub Judge. 9. Having heard learned counsels for both the sides and upon going through the materials on record, I find from the impugned order passed by the Appellate Court below itself, that a written statement was filed by the present petitioner along with her husband in the suit on 24.1.1993, and in the entire written statement, it was no where averred that the loan was taken by her husband alone. There was no mention about the separation of the property between the husband and wife in the entire written statement. During the trial of the suit, the witnesses examined on behalf of the plaintiff were cross-examined on behalf of the defendants, but no evidence was adduced by the defendants and the suit was decreed in favour of the plaintiff, which would mean that it was decreed against both the defendants. Simply because of the fact that in the operative portion of the judgment and decree, the word “defendant', and not the word 'defendants', had been used, it cannot be assumed that the suit was not decreed against both the defendants. Simply because of the fact that in the operative portion of the judgment and decree, the word “defendant', and not the word 'defendants', had been used, it cannot be assumed that the suit was not decreed against both the defendants. As the decree was not satisfied, the execution case, being Execution Case No. 8 of 1997 was filed by the decree holder Ram Dayal Singh, in which, the husband of the present petitioner had appeared, but later on, he became absent. The notice was also sent through registered post to the defendant No. 2 Damyanti Devi, but she did not appear before the Executing Court. However, on 7.10.1999, an application was filed by both the judgment debtors submitting that they had filed a miscellaneous case for setting aside the ex-parte hearing, but it was rejected. They also preferred a Civil Revision before the High Court, but the same was also withdrawn. Another application was filed by the judgment debtors stating that they had preferred a Misc. Case No. 1 of 2000, before the District Judge and lastly on 18.11.2000, an application under Section 47 C.P.C., was also filed by both the judgment debtors Surajdeo Prasad Verma and Damyanti Devi, jointly praying to recall the order of attachment dated 22.11.1999. That application was registered as Misc. Case No. 18 of 2000, but thereafter none of the judgment debtors appeared before the Executing Court, and by order dated 6.12.2000, the application was dismissed by the Executing Court, holding that the judgment debtors had no interest in the matter. Thus, it is apparent from the order passed by the learned Appellate Court below that both the judgment debtors had full knowledge of the execution case and accordingly, the submission of learned counsel for the petitioner that the petitioner had no knowledge of the execution case cannot be entertained. 10. The impugned order further discloses the fact that in Misc. Case No. 41 of 2003, which was filed by the present petitioner under Order XXI Rules 90 and 92 read with Section 151 of the Code of Civil Procedure, for setting aside the auction sale, she had examined her daughter, Jyoti Verma in support of the fact that she had no notice in the execution case. Case No. 41 of 2003, which was filed by the present petitioner under Order XXI Rules 90 and 92 read with Section 151 of the Code of Civil Procedure, for setting aside the auction sale, she had examined her daughter, Jyoti Verma in support of the fact that she had no notice in the execution case. Though this witness has stated that her mother had half share in the property, which was auction sold without her knowledge and has also stated that her father Surajdeo Prasad Verma is alive, who had no knowledge about this case. In her cross-examination, she has gone to the extent of saying that she had no knowledge as to whether her father had filed any written statement in the title suit or not. Thus, it is apparent that this witness examined by the petitioner in the Court below was not a truthful witness and she was concealing the real facts from the Court. The learned Appellate Court below, in my considered view, has rightly held that the petitioner could not prove her separation with her husband and also failed to prove the fact that she was living separately from her husband. She had jointly contested the suit and she was also certainly a judgment debtor. 11. As regard the point taken by the learned counsel for the petitioner that the proclamation for sale was not properly made, the leaned Appellate Court below has noted from the records that the publication of proclamation for auction sale was published in the newspaper and the notice of auction sale was also affixed on the property sold in auction. In that view of the matter, it cannot be said that there was any defect in the proclamation and further, if it is the case of the petitioner that she was living in the same house, she could not deny the knowledge of proclamation. 12. Order XXI Rule 90 of the Code of Civil Procedure, reads as follows:- “90. In that view of the matter, it cannot be said that there was any defect in the proclamation and further, if it is the case of the petitioner that she was living in the same house, she could not deny the knowledge of proclamation. 12. Order XXI Rule 90 of the Code of Civil Procedure, reads as follows:- “90. Application to set aside sale on ground of irregularity or fraud.- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a ratable distribution of assets or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such h irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.” 13. A plain reading of Rule 90(3) clearly shows that no application to set aside a sale under this rule could be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of the sale was drawn up. Admittedly, the appearance of the present petitioner in the execution suit by filing different applications as stated above, clearly shows that she had the knowledge of the execution case. As the proclamation was affixed on the property to be sold, and the petitioner claimed that she was living in the same house, she could not deny the knowledge of proclamation. If she had the knowledge of proclamation, she could have challenged the auction sale definitely at the time of execution and in any case, when the proclamation was affixed on her house, but admittedly no challenge was made by her till the auction of the property was completed. The auction sale was confirmed on 26.7.2001 and the sale certificate was also issued in favour of the purchaser opposite party on 17.10.2001. The auction sale was confirmed on 26.7.2001 and the sale certificate was also issued in favour of the purchaser opposite party on 17.10.2001. In the present case, it is also an admitted fact that no purchase money was deposited by the present petitioner, while making the application for setting aside the auction sale. The petitioner also miserably failed to make out any case of material irregularity or fraud in the auction sale, in absence of which, no case is made out for setting aside the auction sale. 14. In the backdrop of these facts, I am of the considered view that the application filed by the petitioner for setting aside the auction sale, which was even confirmed in favour of the purchaser opposite party, and even the sale certificate had been issued in his favour, could not have been entertained at that belated stage by the learned sub Judge-IV, Bokaro, particularly when the petitioner could not make out any case of material irregularity or fraud in the auction sale. I do not find any illegality / irregularity in the impugned order dated 11.12.2015, passed by the learned District Judge-IV, Bokaro, in Misc. Civil Appeal No. 09 of 2014, setting aside the order dated 17.4.2012 passed in Misc. Case No. 41 of 2003, by the learned Sub-Judge-IV, Bokaro, worth any interference in the revisional jurisdiction. 15. There is no merit in this civil revision and the same is accordingly, dismissed.