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2023 DIGILAW 406 (AP)

V. S. Rao, Krishna Dist And Other v. M/s J Finance Company, Krishna Dist And Other

2023-02-16

TARLADA RAJASEKHAR RAO

body2023
JUDGMENT Tarlada Rajasekhar Rao, J. - The 1st respondent herein is the plaintiff in the Suit O.S. No.446 of 2009 filed suit for recovery of money basing upon the promissory note and the said suit was decreed exparte. Later, the 1st respondent herein filed Execution Petition No.80 of 2011 for realization of amount and got attached property of the appellants herein who are the defendants in the suit under Order 21 Rule 54 of CPC. Later, the 1st respondent herein also filed an application under Rule 64 and 66 respectively to Order the property attached to be sold and sale proceeds to be paid to the decree holder and for proclamation of sale by public auction. In the said petitions, the appellants herein were given notices. Accordingly, the execution Court has sold the property by conducting auction on 06.06.2013, the same was confirmed on 15.09.2015 and sale certificate was issued on 18.02.2016. 2. While the things stood thus, the appellants herein who are the judgment debtors in Execution Petition filed an application vide E.A. No.118 of 2015 with a prayer to permit to deposit the warrant amount due as on 06.06.2013 and 5% of the bid amount and appellant herein also filed EA No.131 of 2013 for setting aside the sale under Order 21 Rule 89 of CPC instead of under Order 21 Rule 90 of CPC. The said EA 131 of 2013 came to be dismissed. 3. Aggrieved by the said order in E.A. No. 131 of 2013 dated 24.08.2015, the present Civil Miscellaneous Appeal came to be filed and the appellant herein filed miscellaneous petition No.369 of 2016 in C.M.A. No.160 of 2016 for stay of all further proceedings in E.P. No.80 of 2011 in O.S. No.446 of 2009 on the file of the II Additional Senior Civil Judge, Vijayawada and the same was discussed at para Nos. 13 and 14. 4. The EA No.131 of 2013 was dismissed on the ground 'that the petitioner was served with Rule 54 (1-A) notice but at no time, any objection was raised till the sale was held and when the sale was about to confirm only he came up with the present application', on the said ground, the E.A. No.131 of 2013 in E.P. No.80 of 2011 was dismissed. 5. 5. Assailing the said order, the present Civil Miscellaneous Appeal came to be filed on the ground that the Court below has not passed a reasoned order and the description of the boundaries of west and north are wrongly mentioned which amounts to defraud the appellant herein and there are certain irregularities in publishing sale proclamation and property value was shown less, and he relied on the Judgment in S.P. Changalvaraya Naidu (dead) by Lrs. v. Jagannath (dead) by Lrs. and others (1994) 1 SCC 1 for the proposition non disclosure of relevant and material documents with a view to obtain advantage amounts to fraud. Without considering the above said facts, the learned Executing Court has dismissed the application, hence, prayed to set aside the order in E.A. No.131 of 2013. 6. It is the contention of the appellant herein that the approach of the executing court has resulted in securing a very low price and the facts reluctantly proclaiming that prejudice was caused to the judgment debtor who are appellants before this court, these facts are not to be heeded and the sale held in contravention of the law and procedure stated above is confirmed that there would be a patent failure of justice and it is the duty cast upon this court to prevent such failure of justice by annulling the same. 7. That the contention of the 1st respondent Decree Holder is that under Order 21 Rule 90 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 should be satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. And the appellant must go further and establish to the situation to the court that the material irregularity or fraud as a resultant and substantial injury to the appellant even if the appellant has suffered substantial injury by reason of the sale this would not sufficient to set aside the sale unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale. 8. 8. And also further contended that 'no application to set aside a sale under this rule shall be entertained upon any ground which the applicant would have taken on or before the date by which the proclamation of sale was drawn up and stated that a notice was issued under Rule 54 as well as under 64 of Order 21 CPC. The Petitioner has remained exparte and has not raised a little finger about the sale and proclamation conducted by the court. Hence, this contention raised by the appellant here is only for procrastinate the execution proceedings. 9. And he also would contend that undervaluation by itself may not be sufficient to infer fraud. 10. And also would contend that to set aside the sale on the ground of certain irregularities in conducting the sale, there is limitation prescribed under Article 127 to set aside the sale in execution of a Decree including any such application by a judgment debtor is 60 days from the date of sale. And he would contend that the petitioner cannot put into force Order 21 Rule 90 as he has not filed the application to set aside the sale within 60 days and therefore he cannot pray any illegality, irregularity or fraud. But in the instant case, the petitioner has not raised any objection within the stipulated time as such the petition filed by the petitioner itself barred by the limitation and prayed to dismiss the appeal and relied on the judgment in Jagati Timmaraju v. Uppuluri Brahmmanna 1998 (3) ALD 404 . And he also relied on the judgment in Nerella Chinna Subba Rao v. Gunda Ankarao and another 2015 LawSuit(Hyd) 835 equivalent to 2015 (5) ALT 311 for the proposition 'the sale of the property in auction cannot be set aside on the ground of material irregularities unless those grounds have been specifically taken on or before the date on which the proclamation of sale has been drawn up.' 11. And he also relied on another judgment in Dipali Biswas and others v. Nirmalendu Mukherjee and others AIR 2021 Supreme Court 4756 for the proposition a judgment debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in earlier rounds of litigations, the appellant cannot be permitted to raise it now. After having failed to raise the issue in earlier rounds of litigations, the appellant cannot be permitted to raise it now. And he also relied on another judgment in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh & others AIR 1964 SC 1300 for the proposition that the party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under order 21 rule 90 of the Code of Civil Procedure. Even if he could, the sale cannot be set aside unless by the reason of the said defect or irregularity he had sustained substantial injury. 12. Admittedly the petitioner herein has not filed an application to set aside the sale on the ground of fraud and irregularity within the stipulated time as contemplated under Article 127 of the Limitation Act and it is also admitted fact that the petitioner herein has not deposited the amount as contemplated under clause (a) of Rule 89 of Order 21 CPC. 13. At this juncture the learned counsel for the appellant would submit that he has complied with clause (a) of Rule 89 of Order 21 CPC. The sale proceed itself is compliance of clause (a) of Rule 89 of Order 21 CPC and he has also contended that the issue has been upheld by the Hon'ble Apex Court in Special Leave Petition to Appeal in SLP (C) No.6425 of 2016. 14. Refuting the same, learned counsel for the 1st respondent would contend that the appellant herein filed miscellaneous petition in CMAMP No.369 of 2016 in the present CMA and the same has been dismissed by this Court by an order dated 25.02.2016 and the appellant herein carried out the matter to the Hon'ble Supreme Court and the Hon'ble Supreme Court directed to deposit the sale amount of Rs.81,61,000/- in a fixed deposit and also directed not to dispossess the judgment debtors from the suit premises till disposal of the appeal pending before this court and the sale proceed cannot be considered as compliance of Clause (a) of Rule 89 of Order 21 CPC. 15. 15. It is settled law to set aside the sale on the ground of fraud or irregularity the petitioner has to state the substantial injury and the same shall be filed before the proclamation of the sale wherein the present case the application has been filed after two years of the sale. And the sale certificate was issued on 08.02.2016 and the sale was confirmed on 15.09.2015. 16. As per the judgment in Mohan Lal v. Hari Prasad Yadav and others (1994) 4 SCC 179 the Executive Court has no jurisdiction whatsoever to entertain the application purported to be under Order 21 Rule 89 of the Code of Civil Procedure after the period of limitation prescribed by Article 127 of the Limitation Act. 17. As per the judgment of the Mahakal Auto Mobiles & others v. Kishan Swaroop Sharma (2008) 13 SCC 113 followed a judgment in Deshbadhu Gupta v. NL Anand (1994) 1 SCC 311, the Honble Supreme Court reiterated that at each stage of the execution of the Decree when a property is sold, it is mandatory that a notice should be served by the person whose property has been sold in execution of the decree and any property which is sold without notice to the person whose property is been sold is a nullity. It is axiomatic from the facts that the notices were served on the appellant/judgment debtor under Rule 54 and 64 of Order 21 CPC under such circumstances the court should not interfere on the ground of the irregularity in conducting the auction. 18. From the above said law, the appellant is not entitled for any relief. However, the executing court has passed a cryptic order without assigning any reasons as indicated in para 4. 19. The Hon'ble Supreme Court in Ravi Yashwanth Bohir v. District Collector, Raigad and others (2012) 4 SCC 407 .' reiterated the requirements of assigned reasons for conclusion by courts, the reason was heart beat of every conclusion assigned in the order and without reasons the order would become lifeless. The Hon'ble Supreme Court further reiterated that not only the administrative but also judicial orders must be supported by reasons recorded in it, and while deciding the issue, the court is bound to give its reasons for its conclusion. The Hon'ble Supreme Court further reiterated that not only the administrative but also judicial orders must be supported by reasons recorded in it, and while deciding the issue, the court is bound to give its reasons for its conclusion. From the impugned order, I found that there is absolutely no discussion on the issue raised by the appellants before the executing Court. 20. As contested by the appellant herein the executing court has not assigned any reasons or the reason which is assigned is not a valid reason for disposal of the present application. Hence, this court is inclined to set aside the impugned order and remand back the matter to adjudicate afresh without un-influencing any of the observations made in this order. 21. This Civil Miscellaneous Appeal is allowed. However, no costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.