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2024 DIGILAW 1603 (AP)

Kurmadasu Apparao v. Ganapathi Ammarajamma (Died)

2024-12-27

NYAPATHY VIJAY

body2024
JUDGMENT : 1. The present civil revision petition was originally filed questioning the order dated 21.04.2022 passed in IA No.175 of 2022 in IA No.588 of 2014 in IA No.661 of 1994 in OS No.252 of 1986 by the II Additional Senior Civil Judge, Visakhapatnam. Subsequently, the prayer was amended pursuant to the order dated 05.12.2022 passed in IA No.1 of 2024 passed by this Court and the challenge was restricted to intermediary order dated 16.07.2021 passed by the Trial Court in IA No.588 of 2014. 2. The respondent Nos.1 to 6 herein are the plaintiffs in the suit and respondent No.7 was the sole defendant. 3. The brief facts of the case are as follows : The suit OS No.252 of 1986 was filed for partition of the suit schedule properties. The said suit was decreed. As the Item No.1 of the suit schedule properties could not be divided, the Trial Court conducted an auction for the same on 18.02.2020. The petitioner participated in the auction and became the highest bidder for an amount of Rs.50,95,000/-. 4. The petitioner immediately paid Rs.12,73,750/- towards 1/4th of the total bid amount on 19.02.2020 after obtaining permission from the Trial Court i.e., Rs.11,20,855/- towards sale consideration vide transaction ID.No.30163560562019 and Rs.1,52,895/- vide transaction ID.No.30163655422019 dated 19.02.2020 towards poundage amount. 5. Subsequently, the petitioner paid Rs.39,74,145/- towards balance sale consideration on 25.02.2020 vide Transaction ID.No.30166270712019 even though the 3/4th balance amount comes to Rs.38,21,250/-. The petitioner paid an amount of Rs.1,52,895/- in excess of the original amount, which is the poundage amount, under the mistaken notion. 6. Subsequently, the petitioner filed an application vide GR No.1518 dated 04.08.2020 expressing his readiness to get the Sale Certificate. The Trial Court on 16.07.2021 passed the impugned order setting aside the auction sale on the ground that the petitioner did not deposit non-judicial stamps or amount for purchase of non-judicial stamps in Court within the time prescribed under Order 21 Rule 85 CPC as applicable to the State of Andhra Pradesh. 7. The Trial Court was of the opinion that the time period prescribed under Order 21 Rule 85 CPC for deposit of non-judicial stamps was mandatory and non-compliance of the time frame prescribed invalidated the auction process. 7. The Trial Court was of the opinion that the time period prescribed under Order 21 Rule 85 CPC for deposit of non-judicial stamps was mandatory and non-compliance of the time frame prescribed invalidated the auction process. The petitioner thereafter filed an application seeking review vide IA No.175 of 2022 explaining that the excess amount of Rs.1,52,895/- is in the custody of the Court and non-deposit of the non-judicial stamps cannot be said to be fatal blow. 8. It was further urged that as per the procedure, deposit of non-judicial stamps would come after confirmation of sale, as the Trial Court in this case, did not pass any order confirming the sale. The review application was also dismissed by the Trial Court vide order dated 21.04.2022. 9. Initially, the petitioner filed the civil revision petition questioning the order passed in the review application i.e., IA No.175 of 2022 and subsequently the prayer was amended and the order dated 16.07.2021 cancelling the sale as stated supra was questioned. 10. Heard Sri G. Ram Gopal, learned Counsel assisted by Sri S. Bala Mohan Rao, learned Counsel for the petitioner and Sri Eluru Sesha Mahesh Babu, learned Counsel for the contesting respondent No.7 i.e., the defendant in the suit. 11. The Counsel for the petitioner submitted that the delay in deposit of non-judicial stamps was only on account of the fact that no formal order of confirmation of sale was passed by the Trial Court and therefore there was some delay in deposit of the non-judicial stamp papers. It was also his contention that an amount of Rs.1,52,895/- is in the custody of the Court and the bona fides of the petitioner are established and the Trial Court should have extended time as provided under Order 21 Rule 92(2) of CPC. 12. The Counsel for the contesting respondent No.7 submitted that they do not have any objection for extension of time for deposit of non-judicial stamp papers as required. 13. Having considered the submissions, the excess amount of Rs.1,52,895/- is said to be in the custody of the Court and as cost of the stamp papers is available with the Court, there is no reason for the Court to cancel the sale. 13. Having considered the submissions, the excess amount of Rs.1,52,895/- is said to be in the custody of the Court and as cost of the stamp papers is available with the Court, there is no reason for the Court to cancel the sale. Further, the non-deposit of non-judicial stamp papers is only a trivial error and the Trial Court should not have set-aside the sale on this ground when the petitioner had paid an amount of Rs.50,95,000/- excluding the excess amount. 14. The maxim De Minimis Non Curat Lex is apt for this case and is based on common sense meaning that "the law does not concern itself with trifles". This recognised principle permits Courts to overlook minor infractions and allow a more practical approach to litigation. Long before introduction Order 21 Rule 92(2) CPC vide 1976 amendment which provided for extension of time for payment on account of clerical and arithmetic errors, Justice Wort in Musammat Rukmini Kuer v. Balmik Prasad and another, AIR 1937 Pat. 409, held that law would be reduced to absurdity if minor infractions are not ignored. The short judgment is extracted below : "If I were to confirm the decision of the Court below in this case, it would in any judgment be reducing the law to an absurdity. There is no doubt that the full amount was deposited, although there was a mistake in challan to the extent of 4 annas, a double mistake in fact, because the 4 annas was not deposited in the first instance, that, is to say, when the deposit was first made there was a deficit in favour of the auction-purchaser of 4 annas, and when the deficit was deposited on April 14, the judgment-debtor made the mistake of depositing it in favour of the decree-holder. I do not know what the exact system is in the Court below with regard to these matters, but I can only gather it from the reported decisions insofar as they throw any light upon the matter. But I propose to give no countenance to the idea that the Court, either on the order of the Judge or other person in authority, could not have altered the challan for the purpose of putting matters in order. But I propose to give no countenance to the idea that the Court, either on the order of the Judge or other person in authority, could not have altered the challan for the purpose of putting matters in order. For this Court to hold that the judgment-debtor in this case had not in substance complied with the strict letter of the law would, in my judgment, be ignoring the well-known principle of de minimis non curat lex. In my judgment the Judge was quite irregular in this case, although perhaps his decision is understandable by reason of the authorities of this Court in not holding that the judgment-debtor was entitled to have the sale set aside. The rule is made absolute, but there will be no costs." 15. Apart from the above, the Order 21 Rule 92(2) of CPC also provides for extension of time where there is shortfall of payment on account of any clerical or arithmetic error in depositing the amount within the time specified. In this case, though the error on the part of the petitioner may not be termed to be 'clerical' or 'arithmetic' error, but the same is at best a bona fide error and even in such circumstances, the Trial Court is empowered to extend time. 16. Therefore, the order of the Trial Court dated 16.07.2021 is set-aside. The Trial Court shall receive the stamp papers and issue sale certificate at the earliest after due compliances. 17. With the above direction, the civil revision petition is allowed. 18. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.