HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgement Reserved on 31.7.2014) (Judgement Delivered on 23.12.2014) Court NO.59 A.F.R. Case :- WRIT - C No. - 8755 of 2000 Petitioner :- Smt. [ENTITY] Respondent :- Iv Addl. D.J. & Another Counsel for Petitioner :- [ENTITY],[ENTITY], [ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
Heard Shri [ENTITY], learned counsel for the petitioner, Shri [ENTITY] and Shri [ENTITY], learned counsel for the respondents.
Petitioner herein, has filed a suit being [CASE NUMBER] for recovery of dower of Rs.10,000/- and for maintenance of Rs.2000/- as also the pendente lite future maintenance allowance @ Rs.100/- per month. The said suit was decreed on 30.1.1980 and as the decree was not satisfied by the respondent no.2, the petitioner filed an execution application on 5.9.1980 bearing [CASE NUMBER]. The decree was executed and the property was attached in the execution proceedings and auction was held on 4.2.1983. The petitioner also participated in the said auction sale with permission of the court concerned and as her bid was the highest, the same was accepted and the sale was confirmed in favour of the petitioner on 29.10.1983. A sale certificate was issued in favour of the petitioner on 25.2.1984. The bid of the petitioner was Rs.18,800/- and the decreetal amount was Rs.17534.80. The petitioner, after satisfaction of the decreetal amount, deposited the remaining amount of Rs.1213/- in the court concerned on 10.2.1983. In the interregnum, the respondent no.2/judgment debtor moved an application on 28.2.1983 for allowing him to deposit the decreetal amount. On 10.3.1983, he was permitted to deposit the amount of Rs.4500/- fixing 20.4.1983 as the next date, but the amount was not deposited by him, which, in fact, was not deposited till 4.7.1983, whereupon, the court ordered for proceeding with the execution case. Ultimately on 14.7.1983, the judgment debtor/respondent no.2 deposited Rs.4500/- but failed to deposit the remaining amount, consequently, on 29.10.1983 the auction sale was confirmed in favour of the petitioner. An application was filed by the petitioner decree holder on 15.3.1984 for delivering of possession which was handed over on 21.7.1984.
After several months of confirmation of the sale, an objection was filed by the respondent no.2 on 24.5.1984 allegedly under [SECTION] [ACT] which was registered as [PRECEDENT]. On 21.7.1984 the possession of the property in question is said to have been handed over to the petitioner. The above mentioned objections of the respondent no.2 were rejected by Civil Judge, Shahjahanpur on 15.1.1988 on the ground that the auction sale had already been confirmed on 29.10.1983 and the records had been consigned on 2.11.1983. The respondent no.2 did not challenge the said order. It is said and has also been observed in the impugned order passed by the revisional court that some order was passed under [SECTION] [ACT] which was challenged by a third party, namely, [ENTITY] by filing an appeal before the High Court which was dismissed on 18.7.1988.
Four years after the confirmation of sale, the respondent no.2 filed another objection on 2.9.1988, also alleged to be under [SECTION] [ACT], which was registered as [CASE NUMBER]. In the said proceedings an application for grant of temporary injunction was filed on 24.5.1994 which was rejected on 14.9.1994. In the interregnum, vide order dated 27.10.1988, the name of the petitioner was ordered to be mutated in the revenue records under [SECTION] of the Land Revenue Act, 1[SECTION]1 after considering the objections of the respondent no.2 who filed an appeal against the said order which was dismissed on 7.3.1989. Further, the petitioner herein, filed a suit before the Revenue Court for partition in respect of the property in question against the brother of the respondent no.2, who had half share therein. The said suit was decreed and in pursuance thereto the possession of her share was handed over to her on 20.6.1993 in satisfaction of the decree, i.e., half share of the property. Against the order dated 14.9.1994, rejecting the temporary injunction application the respondent no.2 filed a revision which was allowed on 13.12.1995 granting interim injunction with a direction to the Execution Court to decide the objections, thereafter, the objections registered as [CASE NUMBER] were rejected on 20.8.1996. Against the said order, respondent herein, filed a revision bearing [CASE NUMBER] which was allowed on 30.10.1999. The sale in question along with order dated 20.8.1996 was set aside and the respondent no.2 was directed to deposit the decreetal amount, i.e., sale consideration along with 18% interest per annum from the date of auction sale till the date of the order. He was further directed to deposit the aforesaid amount within 15 days positively.
Being aggrieved, this writ petition was filed by the petitioner-decree holder/auction purchaser in the year 2000 and this Court on 21.2.2000 passed a conditional interim order for delivery of possession in favour of the petitioner if the respondent no.2 failed to repay the amount along with the interest of 18% by 7.3.2000 before the court below whereupon the operation of the order of the revisional court shall remain stayed.
The submission of learned counsel for the petitioner is that the objection in question was not maintainable after the confirmation of sale on 29.10.1983, especially, as the earlier objection had already been rejected on 15.1.1988 which had become final between the parties. In any case, the revisional court overlooked the provisions contained in the proviso to [SECTION] as amended and applicable in the State of U.P. The second objection filed on 2.9.1988 was highly time barred.
On the other hand, learned counsel for the respondent no.2 submitted that the sale in question was a nullity as the same was held in flagrant violation of [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] The property in question was grossly undervalued, and the executing court accepted the valuation of the property at Rs. 18000/- as mentioned by the decreeholder as gospel truth. The entire property should not have been put to auction as its value was much more than the decreetal amount. He submitted that the delivery of possession was effected only on paper and no actual physical possession was handed over. He also submitted that in fact the auction sale was fixed earlier also but was postponed, therefore, fresh proclamation of sale was required under [SECTION]. In the earlier auction the petitioner had made a bid of Rs.21,000/- but the same could not be deposited by her. Surprisingly, in the subsequent sale, a lower amount of Rs.1880/- was offered by her which was accepted which was clearly impermissible. The rejection of the earlier objection by order dated 15.1.1988 was not a bar in filing the subsequent objection which in substance was under [SECTION], as, they were in respect of post sale illegalities as distinct from pre sale illegalities which were covered under [SECTION] [ACT]; mentioning of an incorrect nomenclature or provision or clause is not fatal. The revisional court has relied upon various decisions in support of its judgment which does not suffer from any error. He relied upon the decision of the Supreme Court in [PRECEDENT]; [PRECEDENT] and [ENTITY], 1994(1) SCC 131.
I have heard learned counsel for the parties and perused the record.
On a perusal of the record, it is revealed that by means of a supplementary affidavit dated 30.12.2012 apart from the averments made in the writ petition, it was specifically averred that the respondent no.2 filed objection under [SECTION] [ACT] on 22.10.1980 which was rejected. It further states that an objection was also filed in the year 1984, i.e., after confirmation of sale and issuance of the sale certificate, which purported to be under [SECTION] [ACT] and was registered as [CASE NUMBER]. These objections were rejected by the Execution Court on 15.1.1988. I have perused the copy of the alleged objection as contained in Annexure SA-2 to the said supplementary affidavit and from the contents thereof, I have no doubt that it was an application for setting aside the sale in terms of [SECTION] [ACT] and primarily it was based on post sale illegalities. This objection was rejected on 15.1.1988 and the fact that it was under [SECTION] is admitted to the respondent no.2 in paragraph 22(ii) of his counter affidavit, as is also mentioned in the impugned order of the revisional court where it refers to an order under [SECTION] having been challenged in appeal before the High Court by a third party. These facts, if read conjointly, with the assertions made by the petitioner in paragraph 11 of the writ petition leave no doubt that the order dated 15.1.1988 rejecting [CASE NUMBER] was an order under [SECTION] [ACT] The said order was upheld by this Court in the appeal by a third party, namely, [ENTITY] and it was never challenged by the respondent no.2. Thereafter, another application/objection was filed on 2.9.1988 which was rejected on 20.8.1996. A perusal of the copy of this objection/application, which was also made allegedly under [SECTION] [ACT] reveals that, in fact, these objections were also referable to the grounds available for setting aside the sale under [SECTION] [ACT] and it was an application virtually under the said provision, a fact which was also asserted by the learned counsel for the respondent no.2 during the course of arguments by stating that while earlier objection was under [SECTION] [ACT] the subsequent one was under [SECTION] [ACT], as, it related to post sale illegalities. This case which was registered as [CASE NUMBER], was rejected by the Execution Court vide order dated 20.8.1996. The respondent no.2 has filed his reply to the aforesaid supplementary affidavit wherein the factum of aforesaid objections/applications and their rejection has not been denied. I find that both the objections/applications which were decided, i.e., one which was decided on 15.1.1988 and the other on 20.8.1996, were, in fact applications for setting aside the sale under [SECTION] [ACT]
[CASE NUMBER] under [SECTION] [ACT] was rejected on 15.1.1988 on the ground that the sale had already been confirmed on 29.10.1983; the sale certificate had also been issued; possession had been delivered on 21.10.1983 and the records had been consigned vide order dated 2.11.1983, therefore, it was not maintainable.
It is not in dispute that the order dated 15.1.1988 rejecting the application under [SECTION] [ACT] was never challenged by the respondent no.2, but it was challenged by a third party by means of an appeal which was dismissed on 18.7.1988. [SECTION] provides that where no application is made under [SECTION], [SECTION] and [SECTION] or where the said application is made and is disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. The respondent no.2 did make an application under [SECTION] but as he did not deposit the amount mentioned therein, within the time provided, therefore, the matter was proceeded further and the sale was confirmed on 29.10.1983. The first application under [SECTION] was filed on 24.5.1984, i.e., more than 6 months after the sale confirmation.
Thereafter, on 2.9.1988, i.e., 4 years after confirmation of the sale, and after the earlier application was rejected, another application was filed. It was also an application for setting aside the sale under [SECTION] [ACT] This second application which was registered as [CASE NUMBER] was clearly not maintainable, as was the first application, after the sale had become absolute on its confirmation on 29.10.1983 and had attained finality. Both the applications were barred and not maintainable in view of the limitation of 60 days (from the date of sale) prescribed under [SECTION] of the [ACT] for filing an application for setting aside sale in execution of a decree, including such application by a judgment debtor. Even otherwise, the first application was rejected on 15.1.1988 and the same was never challenged by the respondent no.2. The order dated 15.1.1988 under [SECTION] [ACT] was challenged by a third party before the High Court in appeal, but her appeal was rejected on 18.7.1988. Thus the matter regarding the validity of the sale attained finality on 29.10.1983, i.e., the date of the confirmation of the sale. The applications filed thereafter, as referred hereinabove, were clearly time barred and not maintainable. Reference may be made in this regard to the judgment of this Court reported in [PRECEDENT]; relevant portions of paragraphs 14 and 16 thereof read as under:
"14. We may now consider the above contention of the learned Counsel for the respondent decree-holder. It has been already noticed that on January 2, 1979 while dismissing the application of the judgment-debtor under [SECTION] of the [ACT], the learned District Judge also confirmed the sale. The said order of the learned District Judge confirming the sale is binding not only on the judgment-debtor, who made the application under [SECTION], but also on all other parties to the execution proceedings including the 4th judgment-debtor. Accordingly, there can be no doubt that the application filed by the 4th judgment-debtor praying for the setting aside of the sale on grounds other than those mentioned in [SECTION], [SECTION] and [SECTION], was not maintainable after the confirmation of the sale. Indeed, by the order dated July 21, 1979 the learned District Judge while dismissing the application of the 4th judgment-debtor observed that after the confirmation of the sale, the court was not authorised to entertain the application. We do not think that the decision of the Privy Council in [ENTITY]'s case (supra) lends any support to the contention of the learned Counsel for the respondent decree-holder that an auction-sale can be set aside even on grounds other than those mentioned in [SECTION], [SECTION] and [SECTION]. All that has been ruled in that decision is that in construing the meaning of the words "when the sale becomes absolute" in [SECTION] of the old [ACT], regard must be had not only to the provision of [SECTION] of the Code, but also to the other material sections and orders of the Code including those which relate to appeals from orders made under [SECTION]. No provision of the Code has been pointed out to us under which a sale can be set aside apart from the provisions of [SECTION], [SECTION] and [SECTION] of the Code. There can be no doubt that when an application for setting aside the sale is made, the order passed by the executing court either allowing or dismissing the application will be final and effective subject to an appeal that may be made under the provisions of the Code. It is inconceivable that even though no appeal has been filed against an order dismissing an application for setting aside the sale, another application for setting aside the sale can be made without first having the order set aside. Such an application will be barred by the principle of res judicata
16 But after a sale becomes absolute on the dismissal of the application of the judgment debtor's claim for setting aside the sale, another application for setting aside the sale by the judgment-debtor is not maintainable and the period of limitation as prescribed by [SECTION] of the [ACT] cannot be computed from the date of the dismissal of the second application for setting aside the sale."
After the sale had been confirmed on 29.10.1983, the petitioner moved an application on 15.3.1984 for delivery of possession, which was handed over to him on 21.7.1984. The possession was of only share and not entire property. The revisional court has held that the property was valued at Rs.2 lakh but it has not given any basis for this valuation, nor has it discussed this issue on the basis of any evidence. The record does not indicate any objection regarding the upset price of Rs.30,000/- fixed by the execution court, having been raised by the respondent no.2 at the stage of sale proclamation. The sale, through the court in execution proceedings, being a forced sale, the amount of Rs.18,800/- cannot be said to be grossly inadequate or undervalued. The respondent no.2 had only half share in the property in question and it is only this part which was put to auction and possession of only half share was handed over. After satisfaction of the decreetal amount of Rs. 17587.50, the remaining amount of Rs.1213/- was deposited by the petitioner on 10.2.1983. The respondent no.2/judgment debtor offered to deposit the decreetal amount on 28.4.1983 in instalments but failed to do so, thereafter, the sale was confirmed and possession was delivered. The objection of respondent no.2 under [SECTION] [ACT] had already been rejected earlier. The application under [SECTION] [ACT] filed on2.9.1988 was beyond limitation prescribed. The earlier application had already been dismissed on 15.1.1988 which was never challenged.
Further the order dated 20.8.1996 reveals that the respondent no.2 offered to deposit the decreetal amount on 28.2.1983, i.e., within 30 days of the auction sale, but he failed to deposit the same till 29.10.1983, inspite of time having been granted in this regard on 10.3.1983. In this regard provision of [SECTION] is relevant which permits an application for setting aside the sale on deposit of the amount mentioned therein. [SECTION] provides that where a person applies under [SECTION] to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule, thus an application under [SECTION] [ACT] could be prosecuted only if the application under [SECTION] if any, is withdrawn. Thus having failed to deposit the amount under [SECTION] it was not open for the respondent no.2 to file an application under [SECTION] [ACT]
Reference may be made in this regard to the judgment of this Court in [PRECEDENT], the last paragraph of which reads as under:
" In fact by enacting the provision contained in [SECTION], [ACT] the legislature granted a concession to the person claiming the property sold in execution of a decree, to get back the property after depositing in court, for payment to the purchaser, a sum equal to 5% of the purchase money, and for payment to the decreeholder the amount specified in the sale proclamation. The legislature, however, clearly enjoined that, if the person claiming the property wanted to avail of this concession, he shall not have the opportunity to simultaneously assail the sale on the grounds of material irregularity and fraud. We are afraid, we cannot give a different meaning to [SECTION], [ACT]"
[SECTION] contains a provision for making an application for setting aside the sale on grounds of irregularity or fraud in publishing or conducting it, if upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. [SECTION] thereof provides that no application for setting aside a sale 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. There is a State amendment in respect to [SECTION] by which a proviso has been added which inter alia provides that no application for setting aside a sale shall be entertained (b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirement of this clause. It is nobody's case that the revisional court for reasons recorded had dispensed with the requirement of this Clause. It is not denied by the respondent no.2 that compliance of this provision, as applicable in the State of U.P., was not made by him. Thus the application of respondent no.2 could not have been entertained on this count also and the revisional court erred in ignoring the Proviso to [SECTION].
In the case of [PRECEDENT], the Supreme Court was concerned with the question as to whether a sale in execution of a decree could be impugned by filing a separate suit and it held that when such a sale is impugned on the ground that it is not warranted by the terms of the decree, or it was a case of excessive execution etc. the question could be agitated, when it arises between the parties to the decree, only by an application under [SECTION] [ACT] and not in a separate suit, however, in view of [SECTION] as existing at that time, it treated the application as an application under [SECTION] [ACT] Thereafter, it considered the question as to whether such an application would attract the limitation prescribed under [SECTION] or [SECTION]. In this context it held that [SECTION] of the [ACT], 1[SECTION]8 (old Act) applies only when the sale is one which under law is to be set aside as for example, under [SECTION], [SECTION] and [SECTION] but it has no application when the sale is inoperative and void. In the latter case such sale is not required to be set aside, but, a mere declaration that it is a nullity, is sufficient, however, such an application by the judgment debtor under [SECTION] to have a sale declared void, or nullity and for appropriate reliefs is governed by [SECTION] of the [ACT], 1[SECTION]8. [SECTION] of the old Act corresponds to [SECTION] of the new [ACT]. Thus in such cases, the limitation of three years from the date the right to apply accrued is attracted. Paragraph 10 of the judgement in [PRECEDENT], (supra) is extracted below:
(10) Coming next to [SECTION], an application by a judgment- debtor to set aside a sale in execution of a decree has, under that article, to be filed within 30 days of the sale. If the present proceedings are governed by this article, there can be no question that they are barred by limitation. But then, there is abundant authority that [SECTION] applies only when the sale is one which has under the law to be set aside as for example, under [SECTION], but that it has no application when the sale is inoperative and void.
In '[PRECEDENT], the appellant was a party to the -suit, but the decree had exonerated him from liability. In execution of the decree, his three-fourths' share in the properties was sold on 26-1- 1[SECTION]0 and purchased by the decree-holder and possession delivered to him on 16-12-1[SECTION]0. The appellant then filed a suit on 25-7-1[SECTION]1 to set aside the sale on the ground that it was in contravention of the decree and therefore void An objection having been taken by the defendant that the suit was barred under [SECTION], the court, while upholding the same, held that the plaint could be treated as an application under that section if it was in time as an execution application, and the question arose for decision whether the application was governed by [SECTION] or [SECTION] of the [ACT]. It was held that- as the sale was a nullity, it had not to be set aside under the law, and therefore the article applicable was [SECTION] and not [SECTION].
This statement of the law was approved by a Full Bench of the Madras High Court in [PRECEDENT]. A similar decision was given in, [PRECEDENT], wherein it was observed by [ENTITY], J. that the sale being void need not have been set aside at all, and the order to be passed was "in substance merely a declaration that the sale was null and of no effect". The question whether an application by a judgment debtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void was governed by [SECTION] or [SECTION] came up directly for consideration in '[PRECEDENT].
In holding that the application was governed by [SECTION], [ENTITY], J., (as he then was) observed that "[SECTION] must be confined to cases where the sale is voidable only and not void and when the execution sale is a nullity, if a party files an application under [SECTION] to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper article would be [SECTION] and not [SECTION] of the [ACT]".
The decisions in [PRECEDENT] and [PRECEDENT], were again followed in '[PRECEDENT] wherein it was held that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really "for an order directing the respondent to deliver property on the ground that there was no valid sale".
We are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by [SECTION] and not [SECTION]."
[SECTION] of the old [ACT],1[SECTION]8 corresponds to and is pari materia with [SECTION] of the [ACT]. Under [SECTION] the limitation prescribed is 3 years from the date the right to apply accrues.
Assuming that the sale in question in this case was void or a nullity, the right to get it declared as such accrued on 4.2.1983 when the sale took place, therefore, the application filed on 2.9.1988 was clearly barred by the limitation prescribed under [SECTION]. The confirmation of such sale on 29.10.1983 was binding on the parties. Thus if the sale is voidable [SECTION] applies, if it is void [SECTION] applies. In either eventuality the application of respondent no.2 was barred by limitation.
The revisional court has failed to consider the aforesaid aspects of the matter. As far as the judgement in [PRECEDENT], (supra) relied upon by it is concerned, it is based on the facts of the said case. There was an objection under [SECTION] and the entire decreetal amount had been deposited by the judgement debtor who was the appellant before the Supreme Court and the same had been withdrawn by the decreeholder. The factual position herein is very different. In [PRECEDENT] and [ENTITY], (supra) the objection under [SECTION] was filed soon after auction sale took place, i.e., before the confirmation of sale. The factual position herein is very different and the same has been narrated hereinabove. So far as the judgment in the case of [PRECEDENT], relied upon by the respondent no.2 is concerned, the Court, inspite of observing that auction sale did not meet the mandatory requirements of law, did not interfere with the validity of the sale as the sale had attained finality because of the confirmation of the same on 22.8.1983, as is evident from conjoint reading of paragraphs 6, 11, 15 of the said judgment. The Court relegated the matter to the execution court only for considering maintainability of application for delivery of possession keeping in mind the limitation prescribed under [SECTION] of the [ACT]. A categorical observation was made by the Supreme Court that the question of applicability of [SECTION] should not have been considered by the High Court and that the question regarding legality of the sale had attained finality on its confirmation.
The revisional court erred in ignoring the provisions of [SECTION] and the fact that the applications under [SECTION] were filed by the respondent no.2 after the confirmation of sale, that too, beyond the period of limitation, without complying with the mandatory provision contained in the proviso to [SECTION] therefore, in my view, its order is not sustainable. The same is accordingly quashed. Consequences to follow accordingly. The respondent no.2 shall be allowed to withdraw the amount deposited by him, if any, in terms of the interim order.
In view of the above discussion, the writ petition is allowed.
Order Dated : 23.12.2014 sc