P. Venkata Ramana Murthy v. Thummuru Venkata Ramana Reddy
2019-02-22
D.V.S.S.SOMAYAJULU
body2019
DigiLaw.ai
ORDER : D.V.S.S. Somayajulu, J. 1. This revision petition is filed questioning the order dated 20.9.2014 in EP No. 115 of 2007 in OS No. 188 of 2005 passed by the Junior Civil Judge, Sullurpet. 2. The suit OS No. 188 of 2005 was decreed in March, 2007. Pursuant to the decree, the property described in the execution petition was brought to sale. Initially, the property was attached and therefore, the decree holder filed the Execution Petition No. 115 of 2007 to bring the property to sale. The judgment debtor contested EP No. 115 of 2007 and thereafter a speaking order was passed on 28.3.2008. The objections raised by the judgment debtor to the sale of the property were overruled. The Court noticed that on 16.9.2005 when the property was attached by the Field Assistant, there was no objection from the third parties and the attachment was also made absolute. This finding is recorded in Para 11 of the order dated 28.3.2008. Thereafter, the Court directed the decree holder to proceed further. After hearing the Counsels and considering the record, it transpires that the sale of the property was held on 12.9.2008. From 12.9.2008, after the sale was held, the auction purchaser became involved in the execution proceedings. Thereafter, the sale was not confirmed and the matter was kept pending due to the various applications that were being filed which are detailed later in the order. Ultimately, in August, 2004 a full Satisfaction Memo was filed on behalf of the decree holder. The decree holder in 2014 prayed the Court to record full satisfaction of the decree debt and to raise the attachment. The Court ordered notice to the auction purchaser and ultimately passed the impugned order on 20.9.2004, which is to the following effect: "In view of full satisfaction memo, the DHR and JDR are directed to deposit the interest on the sale amount at 12% per annum alongwith poundage on or before 24.10.2014." 3. It is this docket order dated 20.9.2014 that is challenged in this revision petition. 4. This Court has heard Sri M.V.S. Suresh Kumar, learned Senior Counsel representing Sri A. Srinivasa Rao, learned Counsel for the petitioner and Sri K.S. Gopal Krishnan, learned Counsel for the respondents. 5.
It is this docket order dated 20.9.2014 that is challenged in this revision petition. 4. This Court has heard Sri M.V.S. Suresh Kumar, learned Senior Counsel representing Sri A. Srinivasa Rao, learned Counsel for the petitioner and Sri K.S. Gopal Krishnan, learned Counsel for the respondents. 5. The contention of the learned Senior Counsel is that once the auction purchaser enters into the picture and third party rights are created, the Court should be extra cautious in dealing with subsequent objections. It is his contention that once the sale has been held, the only option left to the Court is to confirm after the stipulated period is over, if no objections are received. It is also his contention that the parties can file a full satisfaction memo within the period of 90 days and that the decree holder cannot file a full satisfaction memo and that the provisions of CPC cannot be stretched to give liberty to the decree holder to file a full satisfaction memo whenever he wants. The learned Counsel relied upon a Division Bench judgment reported in Kolloru Kantharao v. Tamana Narayana Murthy and another, AIR 1991 AP 24 , wherein there was an elaborate discussion on the provisions of Order XXI Rules 89 to 92 of CPC. The Court held that the provisions of Order XXI Rule 2 CPC regarding satisfaction should be read alongwith Order XXI Rules 89, 90 and 91. It held that the application should have been filed within 90 days. The learned Counsel drew the attention of this Court to the conclusions of the Division Bench which are as follows: "(1) No sale can be set aside except under the provisions of Order 21 Rules 89, 90 and 91 C.P.C. (2) By a necessary implication a petition under Order 21 Rule 2(2-A), for recording satisfaction of the decree is not maintainable after the sale had taken place even though the sale is not confirmed. (Emphasis supplied) (3) The Court has no option, but to confirm the sale in case where no application is filed under Order 21 Rules 89, 90 and 91 or if filed they have been dismissed." 6. It is his contention that this is a classic case of justice being denied and a case of justice delayed.
(Emphasis supplied) (3) The Court has no option, but to confirm the sale in case where no application is filed under Order 21 Rules 89, 90 and 91 or if filed they have been dismissed." 6. It is his contention that this is a classic case of justice being denied and a case of justice delayed. The learned Counsel submits that they have no knowledge of any application pending for setting aside the sale under the relevant provisions of the CPC and that therefore, the Court committed an error in passing the impugned order. 7. In reply to this, Sri K.S. Gopala Krishnan, learned Counsel for the respondents argues that the provision under Order XXI Rule 2 of CPC applies only to a judgment debtor and not to a decree holder and points out that in this case, it is the decree holder, who filed the memo and not the judgment debtor. Therefore, his first submission is that no error was committed by the lower Court. The second submission of the learned Counsel is that (a) ultimately, the decree holder has realized the decretal amount and the interest of the decree holder are protected. (b) As the Court directed refund of the money with interest, the interest of auction purchaser is also protected. Therefore, he submits that there is no mistake in the order. 8. Lastly, he relies upon the following three judgments and argues that if there is any irregularity in the conduct of the sale, the sale should be set aside. (1) Desk Bandhu Gupta v. N.L. Anand and Rajinder Singh, (1994) 1 SCC 131 . (2) Babu John v. A.K. Ramakrishnan, FAO No. 306 of 2013. (3) CRP No. 3720 of 2013 dated 25.10.2013, Single Judge Judgment of A.P. High Court. 9. It is his contention that post sale illegalities causing substantial injury to the judgment debtor have to be rectified under Order XXI Rules 89 and 90 of CPC. He also relies upon a Division Bench judgment of the High Court of Kerala in Babu John's case (supra), stating that even if there is delay and protraction of the judgment proceedings, if any injury is caused to the judgment debtor, the Court should come to his aid.
He also relies upon a Division Bench judgment of the High Court of Kerala in Babu John's case (supra), stating that even if there is delay and protraction of the judgment proceedings, if any injury is caused to the judgment debtor, the Court should come to his aid. He also relies upon an order passed by this Court in CBP No. 3720 of 2013 (supra), wherein the learned Single Judge, after assessing the entire law on the subject, held that judgment debtor's interest have to be protected in case any mistake is made. He also submits that applications are pending which have been filed under Order XXI Rule 90 of CPC and that therefore, till the same are disposed of, sale cannot be confirmed. It is his final submission that the mere fact that there is delay should not lead this Court to a conclusion that injustice has been caused. 10. After hearing both the Counsels, this Court felt that the record from the lower Court should be summoned. After the record was summoned and seen, it transpires that on 10.10.2008 an application under Order XXI Rule 90 CPC (EA No. 484 of 2008) was filed by one Puttu Kalappa claiming that he has half share in the property. Another application under Order XXI Rule 58 of CPC was filed bearing EA No. 485 of 2008 by the name Puttu Kalappa. In addition, EA No. 227 of 2009 was filed by third party Sri Alla Venkat Reddy under Order XXI Rule 90 CPC to set aside the sale claiming a material irregularity. Lastly, EA No. 290 of 2009 was filed by one P. Venkata Subbamma in November, 2009 under Order XXI Rule 58 CPC claiming ownership. Thus, it is seen that there are a number of applications filed challenging the attachment/sale. 11. This Court notices that the sale was held in September, 2018. More than 10 years has elapsed, but there is no finality to the same. The decree was passed in March, 2007. Only in 2014 a fully satisfaction memo was filed. The argument of the learned Counsel for the respondent is that a full satisfaction memo can be filed even by a decree holder and that there is no prohibition in law for the Court to entertain the same.
The decree was passed in March, 2007. Only in 2014 a fully satisfaction memo was filed. The argument of the learned Counsel for the respondent is that a full satisfaction memo can be filed even by a decree holder and that there is no prohibition in law for the Court to entertain the same. He submits that the interpretation placed by the Division Bench of the A.P. High Court that under Order XXI Rule 2 CPC would not applicable in view of the fact that the decree holder filed the memo. Therefore, learned Counsel contends that the period of limitation which was upheld by the A.P. High Court namely 90 days from the date of sale is not applicable to this case. 12. This Court, after hearing the Counsel, notices that at first blush the argument appears to be appealing, but a close reading reveals that what is prohibited under Order XXI Rule 2(A) CPC is the recording of a full satisfaction memo after the sale has taken place. The Division Bench of Andhra Pradesh High Court clearly held in its conclusions that full satisfaction cannot be recorded after the sale has taken place even though the sale is not confirmed. This judgment of the Division Bench is binding on this Court. The submissions of the respondent is also not acceptable because under Order XXI Rule 2(1) of CPC the decree holder can certify the payment to the executing Court, while under Order XXI Rule 2(2), the judgment debtor can also inform the Court of a payment made outside the Court. The further procedure is also spelt out. Therefore, this Court agrees with the submission of the learned Senior Counsel particularly in view of the Division Bench judgment relied upon by him and holds that the Court committed an error in recording the Ml satisfaction six (6) years after the sale has taken place and before it is confirmed. The period of 90 days after sale is applicable for filing any application or memo under Order XXI Rule 2. Though no period of limitation is prescribed for filing an application by the judgment-debtor for recording full satisfaction of the decree in view of the Division Bench judgment it follows that the said application can be filed only before the properties are brought to sale.
Though no period of limitation is prescribed for filing an application by the judgment-debtor for recording full satisfaction of the decree in view of the Division Bench judgment it follows that the said application can be filed only before the properties are brought to sale. But when once the properties are sold the sale can be set aside only in the manner specifically provided for in the other provisions of Order XXI. Hence, it follows that an application under Order XXI Rule 2(2-A) is not maintainable after the sale is conducted. 13. In addition, the submission of the learned Counsel for the respondents that the interests of the auction purchaser are safeguarded in view of the direction to refund the money does not appear to be correct in the facts and circumstances of the case. The order passed by the Court directs both the judgment debtor and the decree holder to pay the interest. The impugned order was reproduced earlier. It clearly states that both decree holder and the judgment debtor are directed to deposit the interest. It is not clear that how and in what manner the interest is to be deposited by both the parties. Neither the apportionment of interest liability nor the ratio are specified. The order passed by a Court should be capable of being implemented or executed. This order thus suffers from clear uncertainty. In the case on hand, the cursory manner in which the full satisfaction memo is recorded is revealed by this order. Both the decree holder and the judgment debtor are directed to deposit interest on the sale amount at 12% p.a., alongwith the poundage. Therefore, this is not a workable order or a properly executable order. This order will lead to further complication only. 14. In the opinion of this Court apart from the illegalities, this Court feels that a case of this nature would shake the faith that people have in the system. It is often said that the difficulties of a party commence after the decree is passed. It is a fact that the execution petitions are pending for years together because of the applications being filed. This is a classic case of multiple applications being filed in sequence. Nevertheless, since various applications are pending, this Court is of the opinion that they should be disposed of on a priority.
It is a fact that the execution petitions are pending for years together because of the applications being filed. This is a classic case of multiple applications being filed in sequence. Nevertheless, since various applications are pending, this Court is of the opinion that they should be disposed of on a priority. The faith people have in the judicial system will be shaken if such applications are kept pending for years. In Kolluru Kantharao's case (supra), relied upon by the Senior Counsel also it is clearly held that the Court has to dispose of the applications under Rules 20, 89, 90 and 91 CPC and then confirm the sale. 15. In view of the matter, this civil revision petition is allowed. The docket order dated 20.9.2014 passed in EP No. 115 of 2007 is set aside. The executing Court is directed to proceed with and dispose of all the pending applications on an absolute priority. Requests for adjournments should be dealt with very strictly, but in accordance with law. Monthly reports should be submitted to this Court about the progress in the disposal of the pending applications. Every effort should be made to dispose all the pending applications in EP No. 115 of 2007 within four (4) months from the date of receipt of a copy of this order. It is needless to say that the lower Court should dispose of the matter without in anyway being influenced by what is stated in this order. No order as to costs. 16. As a sequel, miscellaneous petitions, if any, pending in this revision shall stand closed.