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2020 DIGILAW 115 (MP)

JAGAT BANDHU v. VIJAY KAUSHAL

2020-01-20

VISHAL DHAGAT

body2020
ORDER/JUDGMENT – Shri R. K. Sanghi, counsel for the appellant. Shri Ashish Shroti, counsel for respondent No. 1. Heard. 2. Appellant has filed the present Misc. Appeal being aggrieved by the order dated 18-1-2017 passed by First Additional District Judge, Harda in Execution Case No. C. S. No. 16-A/2015. By the said order Additional District Judge has allowed I. A. No. 10 filed by the plaintiff, who is respondent No. 1 in this case. He had filed an application for deposit of balance of auction amount. Judgment debtor had also filed objection on 10-3-2016 under Order 21, Rule 78, 83, 87, 90, 92, 93, 94 read with section 151 of Code of Civil Procedure. The objection raised by the appellant was rejected. Executing Court has passed an order that auction purchaser can deposit the balance amount of Rs. 18,58,000/- in CCD of the Court and on deposit of said amount, sale certificate will be issued under Order 21, Rule 94 of Code of Civil Procedure. 3. It is submitted by counsel for the appellant that Executing Court has committed an error of law in allowing the auction purchaser to deposit balance amount after lapse of 15 days. He relied on Order 21, Rule 85 of Code of Civil Procedure. As per said provision, full amount of purchase money shall be paid by the purchaser into the Court before the Court closes on 15th day from sale of the property. The provision clearly states that balance amount is to be deposited within a period of 15 days of auction. It was also submitted by counsel for the appellant that auction was done on 27-2-2016 and 15 days elapses on 14-3-2016. Therefore, the balance money ought to have been deposited by the auction purchaser before the Court closes on 14-3-2016. In the present case, auction money was allowed to be deposited by the Executing Court after lapse of 11 months. The order passed by the Executing Court is without jurisdiction and violates Order 21, Rule 85 of Code of Civil Procedure. The said provision is mandatory in nature and violation of said provision goes to the root of matter and makes the order null, void and without jurisdiction, therefore, this Court must entertain this Misc. Appeal and quash the impugned order dated 18-1-2017. 4. On the other hand, counsel appearing for respondents submitted that appeal filed by the appellant is not maintainable. Appeal and quash the impugned order dated 18-1-2017. 4. On the other hand, counsel appearing for respondents submitted that appeal filed by the appellant is not maintainable. No objection was raised before the Executing Court and as per Order 43, Rule 1(j) of Code of Civil Procedure, an appeal shall lie from an order under provision and section 104 of Code of Civil Procedure, if an order has been passed under Rule 72, 92 of Order 21 setting aside or refusing to set aside the sale. The order in question is not an order under Order 21, Rule 72 or Rule 92, therefore, the appeal filed by the appellant is not maintainable and the same is required to be dismissed. It was also argued by him that the ground raised in Misc. Appeal has not been raised before the Executing Court and therefore, this Court cannot entertain this appeal on the grounds which were raised before the Executing Court and he made a prayer before this Court for dismissing the misc. appeal. 5. The counsel appearing for the appellant has relied upon various judgments. He relied upon AIR 1954 SC 349 , Manilal Mohanlal vs. Syed Ahmed, (1996) 4 SCC 178 , Urban Improvement Trust vs. Gokul Narain, AIR 1968 M. P. 196, Gopilal vs. Sitaram, 1962 M.P.L.J. 325, Goverdhan vs. Ganesh, AIR 1999 SC 3750 , U Nilan vs. Kannayan, AIR 1996 SC 2781 , Balram vs. Ilam Singh, AIR 1998 M. P. 248, Prakash Chand Rai vs. SBI, AIR 1972 SC 801 , Asnew Drums (Private) Ltd. and others vs. Maharashtra State Finance Corporation and others. 6. In the aforesaid judgments, it has been held by the Courts that Court has no jurisdiction to extend time for payment of balance amount of purchase money under Rule 85 and must order resale under Rule 86. Non-payment of price on the part of defaulting purchaser renders sale proceedings as complete nullity and proceedings of seller completely wiped out as if they do not exist in the eye of law. It was also held that a nullity of decree or order can be raised in execution proceeding also. If a decree passed by a Court is a nullity and is non est, then its validity can be set up whenever it is sought to be enforced. It was also held that a nullity of decree or order can be raised in execution proceeding also. If a decree passed by a Court is a nullity and is non est, then its validity can be set up whenever it is sought to be enforced. The defect of jurisdiction strikes at the authority of the Court to pass an order or decree and cannot be cured. From the discussion made in the aforesaid judgments, it is clear that petitioner can raise the ground of want of jurisdiction in the Court to pass the order before this Court though he has not raised the said question before the Court below. The question involved is a question of law and it is based on the facts available on record. The order sheets of the Court clearly reflects that an application was filed for payment of balance consideration and there is no denial on the part of respondents that there is delay in filing the application for paying the balance of amount. 7. In view of aforesaid, appellant has rightly raised the issue of jurisdiction before this Court and this Court can always entertain the pure question of law even if it is raised before this Court for the first time. 8. The second objection, which has been raised by the respondent is that appeal under Order 43, Rule 1(j) of Code of Civil Procedure is not maintainable before this Court. An appeal is maintainable under Order 43, Rule 1(j) of Code of Criminal Procedure. As per Order 21, Rule 92 of Code of Civil Procedure if an application is filed before the Executing Court under Rule 89, 90, 91 and such application is disallowed, then appeal will lie under Order 43, Rule 1(j). The question before this Court is that the application, which has been filed by the appellant in the form of an objection is an application under Order 21, Rules 89, 90 and 91 of Code of Civil Procedure. If application is covered by said Order and Rule, then appeal before this Court will be maintainable under Order 43(1)(j) of Code of Civil Procedure as orders passed under Order 21, Rule 92 of Code of Civil Procedure are appealable. In paras 8, 9, 10 of the objection filed on 29-2-2016 a ground is taken that a fraud has been committed and there was collusive treaty between the parties. In paras 8, 9, 10 of the objection filed on 29-2-2016 a ground is taken that a fraud has been committed and there was collusive treaty between the parties. From the wordings in Order 21, Rule 90 ‘decree holder’, ‘purchaser’ or ‘any other person’ entitled to share in rateable distribution of asset or whose interest are affected by sale may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. The section is widely wording to include the judgment debtor also. The word ‘whose interest are affected by the sale may apply to Court to set aside the sale’ will include judgment debtor also and therefore, it cannot be said that Misc. Appeal cannot be filed against the impugned order. 9. Appellant has raised the issue of jurisdiction, which can be raised even if same was not raised before the Executing Court. Secondly, the appeal which has been filed by the appellant comes within the purview of Order 21, Rule 90 of Code of Civil Procedure. Though appellant had not mentioned the law, i.e. Order 21, Rule 90 of Code of Civil Procedure in the application, but not mentioning of the order or Rule will not take application out side the purview of Order 21, Rule 90 of Code of Civil Procedure. The appeal filed by the appellant is not maintainable. 10. In view of aforesaid discussion, it is clear that the order passed by Executing Court is without jurisdiction. Executing Court has no authority or jurisdiction to extend the period to deposit the balance amount of purchase money. The provision of Rule 85 is mandatory in nature and balance amount ought to have been deposited within 15 days. As the auction purchaser has not deposited the balance amount within 15 days, therefore, the Executing Court has no authority to give permission to the auction purchaser to deposit the balance amount after 15 days. The order of Executing Court suffers from want of jurisdiction and therefore, the same is a nullity. 11. The appeal filed by the appellant is also maintainable. In view of above, impugned order passed by the Executing Court is set aside and Misc. Appeal is allowed. The auction proceedings are set aside.