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2023 DIGILAW 2823 (MAD)

C. Muthammal v. R. Kannan

2023-08-11

C.KUMARAPPAN

body2023
ORDER : Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order of the learned District Munsif, Melur, dated 21.03.2017, in E.A.No.109 of 2017, in E.P.No.79 of 2006 in O.S.No.983 of 1995, by dismissing the Section 47 C.P.C. application. The instant Civil Revision Petition has been filed against the order of the learned District Munsif, Melur, dated 21.03.2017, in E.A.No.109 of 2017, in E.P.No.79 of 2006 in O.S.No.983 of 1995, by dismissing the Section 47 C.P.C. application. 2. The revision petitioners are the judgment debtors. They filed an application under Section 47 of C.P.C with a prayer to declare the sale, dated 02.02.2009, which was confirmed on 11.02.2016 is null and void. 3. According to the petitioners, in pursuance of the money decree, dated 31.08.2001, the property situated in Periyapatti Village along with building bearing Door No.2/72 was brought on sale. The sale proceedings was conducted on 02.02.2009 and subsequently, the same was confirmed on 11.02.2016. According to the petitioner, the said sale proceedings violates the provisions of C.P.C, more particularly, Order 21 Rule 84 and Order 21 Rule 85 C.P.C. It is the submission of the petitioners that as per the Order 21 Rule 84, 25% of the amount should be deposited immediately, and under Rule 85, the remaining 75% of the amount along with stamp duty has to be deposited within 15 days thereafter. Further, according to the petitioners the auction purchasers deposited 25% of the amount, i.e., a sum of Rs.21,000/- on 03.02.2009 and instead of the remaining amount of Rs.59,100/-, has only paid Rs. 59,000/-. It is also the submission of the petitioners that as mandated under Order 21 Rule 85, the general stamps have not been submitted. Therefore, he would contend that the very sale became null and void. 4. Disputing the petitioners' contention, the second respondent / auction purchaser filed a counter statement stating that, every sale proceedings before the Court, would only take place in evening at 03.00 Clock, and that even the impugned sale, dated 02.02.2009 was conducted on the said date at 03.00 pm. Hence, the 25% amount has been paid on the very next date. Like wise, the remaining amount of 75%, viz. Rs.59,100/- was paid on 09.02.2009. Hence, the 25% amount has been paid on the very next date. Like wise, the remaining amount of 75%, viz. Rs.59,100/- was paid on 09.02.2009. Therefore, there is no violation of any of the provisions of C.P.C. The respondent would also submit that on 18.02.2009, at the instigation of the petitioner, his relative filed a claim petition and the said claim was ultimately dismissed on 11.02.2016, after a period of almost 7 years. It is the submission of the auction purchasers that, after the dismissal of the claim petition on the very same day, the sale was confirmed. The respondent would further submit that when he filed an application for delivery of possession, the petitioner came up with the instant application, to set aside the sale. According to the auction purchaser, the instant application is devoid of merits and has been filed only with an intention to prolong the litigation. 5.After hearing both sides, the Court below in it's detailed order, has dismissed the application, with the finding that, when the auction was completed on 03.00 pm, on 02.02.2009, there was no possibility for the auction purchaser to pay the 25% amount in the Bank, on the same day. Hence, in the next day, as per lodgement challan, issued by the Court the auction purchaser has paid 25% of the amount. The learned trial Judge has also found that the remaining 75% of the amount, viz. Rs.59,100/- was paid on 09.02.2009. Therefore, concluded that there was no violation of any of the provisions of C.P.C., and has ultimately dismissed the application. 6. Aggrieved with the order of the Court below, the petitioners / judgment debtors have come up with the instant revision petition. 7. The learned counsel for the revision petitioners would submit that the learned trial Judge failed to appreciate the law laid down by this Court and it is also the submission of the learned counsel for the petitioners that Order 21 Rule 84 C.P.C specifically states that 25% of the amount has to be paid immediately. The non-payment of such amount on the very same day is a serious violation, which would entails the sale become void. 8. It is also the submission of the learned counsel for the petitioners that the entire remaining 75% of the amount was not deposited by the auction purchaser, and what he deposited is only less than the mandatory 75% amount. 8. It is also the submission of the learned counsel for the petitioners that the entire remaining 75% of the amount was not deposited by the auction purchaser, and what he deposited is only less than the mandatory 75% amount. In such circumstances, the learned counsel for the petitioners / judgment debtors would contend that when there is a violation to the provisions of C.P.C, then the very sale is liable to be set aside. 9. Per contra, the learned counsel for the second respondent / auction purchaser would submit that there is no violation of the provisions of C.P.C and would further submit that with the specious defence the petitioners have delayed the delivery of the possession and prayed for dismissal. 10. I have given my anxious consideration to either side submissions. 11. On perusal of the records, it appears that the Court below has reproduced the C.P.C., Central Act, Order 21 Rule 85 instead of Tamil Nadu Amendment, and recorded the finding that the remaining 75% of the amount, viz. Rs.59,100/- was deposited on 09.02.2009, though the petitioner contended that only Rs.59,000/-, was deposited. The learned trial Judge has also extracted the Patna High Court Amendments under Order 21 Rule 94 C.P.C., and found that the auction purchaser can pay the stamp duty, even after 15 days. 12. As rightly submitted by the learned counsel for the petitioners, the reliance of Patna High Court Amendment is not proper procedure, and cannot be accepted at all. For ready reference, the appropriate amendment qua the Madras High Court Amendment of Order 21 Rule 85 is extracted herein: 85. Time for payment in full of purchase money and of stamp for certificate of sale : The full amount of purchase-money payable and the general stamp for the certificate under Rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property; Provided that in calculating the amount of purchase money to be so deposited, the purchaser, shall have the advantage of any set-off to which he may be entitled under Rule 72.” 13. According to Madras High Court Amendment, the same postulates the payment remaining 75% amount of the sale consideration, along with general stamp. According to Madras High Court Amendment, the same postulates the payment remaining 75% amount of the sale consideration, along with general stamp. As far as the 75% of purchase money is concerned, there cannot be any quarrel, as the 75% of amount of Rs. 59,100/- was paid within 15 days. Though the petitioners / judgment debtors object such payment, to contradict the findings recorded by the Court below, no document has been submitted by them. Therefore, now the issue becomes narrow down, and this Court is only ordained to consider whether the non payment of required amount for the stamp paper within 15 days would vitiate the sale or not. 14. In this regard, the learned counsel for the petitioners / judgment debtors would rely upon the judgment reported in 1996-5- SCC-705 (Balram Son of Bhasa Ram V. Ilam Singh). This reported case has arisen from the Allahabad High Court. Wherein, the Hon'ble Supreme Court reiterated the provisions of Order 21 Rule 85 C.P.C, and held that non-compliance of mandatory Rule 85, would render the sale proceedings completely a nullity. But they followed the Central Act of Order 21 Rule 85. As per the Central Act, there is no stipulation as to the submissions of the amount for stamp paper. Even in line with the ratio of the above ruling, here the auction purchaser has deposited the remaining 75% of the sale amount fully. But, here the issue is, non-payment of required amount for general stamp. 15. For ready reference, the Order 21 Rule 85 of the Central Act is hereby extracted:- “85. Time for payment in full of purchase-money.- The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule 72.” 16. The title of the above provision is “Time for payment in full of purchase money”. The title of Rule 85 in Order 21, in the Madras High Court Amendment is Time for payment in full of purchase money and of stamp for certificate of sale. The title of the above provision is “Time for payment in full of purchase money”. The title of Rule 85 in Order 21, in the Madras High Court Amendment is Time for payment in full of purchase money and of stamp for certificate of sale. Therefore, Rule 85 of the Madras High Court Amendment, not only deals about the payment of purchase money, but also deals about the payment of amount required for stamp. This aspect qua the payment of amount towards stamp has not been dealt by the Hon'ble Supreme Court in the Ruling in 1996-5-SCC-705 (Balram Son of Bhasa Ram V. Ilam Singh) cited supra, relied by the petitioners. As explained supra, the said judgment has emanated from the orders of the Allahabad High Court. Where there is no provision similar to the Madras High Court Amendment. Therefore, the above ruling has no application to the present facts of this case. 17. While reading the Central Act, the general stamp has been dealt under Order 21 Rule 94 C.P.C. The general stamp becomes a precondition to have a sale certificate under Order 21 Rule 94 C.P.C. For ready reference, it is incumbent upon this Court to extract Order 21 Rule 94 C.P.C.:- “Order 21 Rule 94 CPC: Certificate to purchaser : Certificate to purchaser. – Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.” As per the above provision, to engross the sale certificate, the stamp is essential. Be that as it may. 18. Coming back to the facts of this case, according to the petitioner, one of the claimants, who is said to have been relative of the petitioner has filed an obstruction petition on 18.02.2009 itself, which came to be dismissed on 11.02.2016. And that, on dismissal of the obstruction application, the sale was confirmed on 11.02.2016.The learned counsel for the second respondent / auction purchaser would submit that, immediately on confirmation of sale, they have deposited the stamp papers and have obtained sale certificate, on 11.02.2016 itself. Therefore, this Court could not find any delay in depositing the stamp papers, immediately on confirmation of the sale. 19. Therefore, this Court could not find any delay in depositing the stamp papers, immediately on confirmation of the sale. 19. At this juncture, the learned counsel for the second respondent would invite the attention of this Court in respect of Article 134 of the Limitation Act. Wherein it mandates that the auction purchaser has to file an application for delivery of possession within one year, after the sale became absolute. The learned counsel for the respondent / auction purchaser would submit that when the sale has been confirmed in favour of the petitioner, mere, non-submission of the sale certificate will in no way vitiate the right transferred upon the auction purchaser. 20. At this juncture, this Court would like to discuss Order 21 Rule 90 C.P.C, which deals about the application to set aside the sale on ground of irregularity or fraud. Order 21 Rule 90 C.P.C., reads as under :- 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 rateable distribution of assets, 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 conduction 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 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.” 21. According to the above Rule, if at all, if there is any irregularity in conducting the sale, then the affected party alone can apply to the Court. Here, having suffered an order of sale, and that the property has already been sold in auction, and subsequently confirmed in the year 2016, the mere non-submission of the stamp paper would in no way materially affect the petitioners / judgment debtors herein. 22. There is another angle to the above provision. Here, having suffered an order of sale, and that the property has already been sold in auction, and subsequently confirmed in the year 2016, the mere non-submission of the stamp paper would in no way materially affect the petitioners / judgment debtors herein. 22. There is another angle to the above provision. Here, in this case, it is the specific submission of the petitioner that, since because the auction purchaser did not submit the stamp paper within 15 days, the sale is vitiated. However, the petitioner did not come forward with such an application immediately, after the completion of the sale of the year in 2009 and they took about almost 8 years, to file the instant application under Section 47 C.P.C. Therefore, the very conduct of the petitioner in filing the application to set aside the sale, is devoid of merits and has been filed only with a view defeat the right of the auction purchaser. 23. The learned counsel for the second respondent / auction purchaser has also relied on the judgment of the Hon'ble Supreme Court reported in 1996-5-SCC-48 (Pattam Khader Khan V. Pattam Sardar Khan). The relevant portion of the judgment reads as follows:- 10. Now to the spirit of it. A Court sale is a compulsory sale, conducted by or under orders of the Court. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. The law requires that it does not become absolute until sometime after the sale; a period of at least 30 days must expire from the date of sale before the sale can become absolute. In that while, the sale is susceptible of being set aside at the instance of the judgment-debtor on the ground of irregularity in publication or conduct of the sale or on defalcation as regards deposit of money etc. as envisaged in Rules 89 and 90 of Order 21. Where no such application is made, as is the case here, the Court was required, as indeed it did, to make an order, confirming the sale and it is upon such confirmation that the sale becomes, and became, absolute in terms of Order 21 Rule 92. as envisaged in Rules 89 and 90 of Order 21. Where no such application is made, as is the case here, the Court was required, as indeed it did, to make an order, confirming the sale and it is upon such confirmation that the sale becomes, and became, absolute in terms of Order 21 Rule 92. After the sale had become absolute, a certificate is required to be granted by the Court to purchaser, termed as 'certificate of sale' in Order 21 Rule 94. Such certificate bears the date as on which the sale became absolute. It is on the sale becoming absolute that the property sold vests in the purchaser. The vesting of the property is thus made to relate back to the date of sale as required under Section 65 CPC. 11. Order 21 Rule 95 providing for the procedure for delivery of property in occupation of the judgment-debtor etc, requires an application being made by the purchaser for delivery of possession of property in respect of which a certificate has been granted under Rule 94 of Order 21. There is nothing in Rule is to make it incumbent for the purchaser to file the certificate along with the application. On the sale becoming absolute, it is obligatory on the Court though; to issue the certificate. That may, for any reason get delayed. Whether there be failure to issue the certificate or delay of action on behalf of the Court or the inaction of the purchaser in completing the legal requirements and formalities, are factors which have no bearing on the limitation prescribed for the application under Article 134. the purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It is true though that order for delivery of possession cannot be passed unless sale certificate stands issued. It is manifest therefore that the issue of sale certificate is not "sine qua non" of the application, since both these matters are with the same Court. The starting point of limitation for the application being the date when the sale becomes absolute i e. the date on which title passed, the evidence of title, in the form of sale certificate, due from the Court, could always be supplied later to the Court to satisfy the requirements of Order 21 Rule 95. See in this regard Babulal Vs. See in this regard Babulal Vs. Annapurnabai - AIR 1953 Nagpur 215 , which is a pointer. It therefore becomes clear that the title of the Court auction-purchaser becomes complete on the confirmation of the sale under Order 21, Rule 92, and by virtue of the thrust of Section 65 CPC, the property vests in the purchaser from the date of sale; the certificate of sale, by itself, not creating any title but merely evidence thereof. The sale certificate rather is a formal acknowledgement of a fact already accomplished, stating as to what stood sold. Such act of the Court is prestinely a ministerial one and not judicial. It is in the nature of a formalisation of the obvious.” (Emphasis supplied by this Court) By relying the above judgment, he would submit that the right of the auction purchaser crystallised and reinforced by the order of sale confirmation, and therefore, the sale became final. He would further submit that the confirmation of sale cannot become undone due to the flimsy reason of non- submission of the amount for stamp papers. 24. At this juncture, this Court is duty bound to mention that the correctness of the Pattam Khader Khan (cited supra) judgment., more particularly, paragraph – 11 was doubted by the Supreme Court in a case reported in MANU/SC/0619/2023 (Bhasker and others V. Ayodhya Jewellers). However, the Hon'ble Supreme Court has flagged a pertinent issue about the absence of time limit to provide a sale certificate. In the above judgment, the Hon'ble Supreme Court has also referred about the procedural delay of issuing the sale certificate, and further stated that for such delay the purchaser cannot be blamed. Therefore what emerges from, Pattam Khader Khan's case and Bhasker and others case (cited supra), is a ratio in respect of the time frame for payment of full purchase money, and not in respect of the payment of required money for the general stamps. 25. Having said so, the judgment of this Court reported 2019- SCC-online Mad– 13105 (Govindan V. Nagendran) has dealt about the issue in respect of the Madras High Court Amendment of Order 21 Rule 85. Wherein this Court after referring to the various aspects and also relying upon AIR-1962-Pat-221 (Harnandan Singh V. Aditya Narain Singh, has held that filing of the stamp paper is only directory and not mandatory. The relevant portion is extracted hereunder: “31. Wherein this Court after referring to the various aspects and also relying upon AIR-1962-Pat-221 (Harnandan Singh V. Aditya Narain Singh, has held that filing of the stamp paper is only directory and not mandatory. The relevant portion is extracted hereunder: “31. In this view of the matter, in my opinion the word, “shall”, used in the expression, “the auction purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of sale”, occurring in Rule 94, read before, must be deemed to be directory, and not mandatory. It should be borne in mind that this provision has been made only to secure the revenue of the State. If the word, “shall”, referred to above, is given its ordinary and natural meaning and construed to be mandatory it will lead to absurdity, and to a manifest contradiction of the apparent purpose of the Code, which undoubtedly was not intended by it. How can the title of the auction-purchaser, when the sale has become absolute under Rule 92(1) of Order 21, and title in the property sold has vested in him under S. 65 of the Code from the date of the sale, be defeated and negatived for non-preparation of the sale certificate for not filing the sale certificate stamp within the time allowed by the said Rule 94? By the default of the auction-purchaser in not filing the sale certificate stamp, the only person affected is the auction-purchaser himself and none else, because of his default there is the consequential delay in the issue of the sale certificate to him. By the default of the auction-purchaser in not filing the sale certificate stamp, the only person affected is the auction-purchaser himself and none else, because of his default there is the consequential delay in the issue of the sale certificate to him. By such default, neither the decree-holder, nor the judgment-debtor, if a stranger is the auction-purchaser, is in any way prejudicially affected, and, consequently, the non-filing of the sale certificate stamp, within the required time, does not make any difference in the matter of the sale that has been validly held and when the full amount of the purchase-money payable as required by Rule 95 of Order 21, has been paid by the auction-purchaser, within the time allowed, and the sale has become absolute and the title has vested in the auction-purchaser.” Thus, the learned Single Judge of this Court has held that furnishing general of stamp paper is only in the context of fiscal legislation, so as to generate revenue to the Government, and that the same in no way affect the conferment of title to the auction purchaser. 26. In yet another judgment reported in MANU/TN/1073/2019 (Vaithilinga Asari V. Sivapragas Chettiar), the learned Single Judge has elaborately dealt with this subject and has ultimately held the delay in submission of the stamp duty is not at all a material irregularity to the extent to vitiate the sale. 27. Even the High Court of Andhra Pradesh in a judgment reported in MANU/AP/0454/2010 (G.Venkata Reddy V. B.Venkata Reddy), where the provisions of Order 21 Rule 85 C.P.C is pari materia to the provisions of Madras High Court amendment, has ultimately held that failure to deposit of general stamp, does not constitute material irregularity. The relevant portion is extracted hereunder: “12. The deposit of stamp amount is subsequent to the conducting sale. Failure to deposit stamp amount does not constitute a material irregularity in conducting the sale...” 28. From the precedents discussed hereinabove, what emerges is the delay in filing of stamp paper, is no way affect the confirmation of sale. Therefore, this Court could not find any infirmity in the order passed by the learned trial Judge. Further, the petitioner has also not put forth any justifiable ground for interference of the impugned order. 29. Therefore, this Civil Revision Petition stands dismissed. There shall be no order as to cost. Consequently, connected Miscellaneous Petition is closed.