CIVIL REVISION No.1307 OF 2008 (Against the order dated 03.05.2008 passed by A.D.J., Fast Track Court-III, Vaishali at Hajipur in Misc. Appeal No. 21/1995) JIVA NATH PRASAD SINGH, S/O- LATE CHAKRADHAR PD, SINGH, R/O- VILLAGE + P.O.- SENDUARI, P.S.- HAJIPUR (SADAR) , DISTRICT- VAISHALI …………………… Petitioner Versus BIRENDRA NATH PRASAD, S/O- RAM CHANDRA PRASAD, PLEADER, R/O- MOHALLA-BAGMALI, P.S.- HAJIPUR (TOWN). DISTRICT- VAISHALI ------------------------Opposite party. For the petitioner : Mr. B.K.Shukla, Sr. Advocate. Mr. Anurag K. Shukla, Advocate. For the opposite parties : Mr. Ajay Kumar Jain, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha,J Heard Mr. B.K.Shukla, learned Senior Counsel, on behalf of the petitioner and Mr. Ajay Kumar Jain learned counsel for the Opposite party. The defendant judgment debtor-petitioner has moved this Court against the order dated 3.5.2008 passed in Misc. Appeal No. 21/1995 affirming the order dated 26.8.1995, rejecting the prayer of the petitioner to set aside the sale in terms of Order XXI Rule 90 of the Code of Civil Procedure. Facts which are not in dispute is that the plaintiff- decree holder-opposite party had filed Money Suit No. 27/1970 against the petitioner for realization of Rs. 1274/- which was decreed ex-parte by a judgment and decree dated 5.6.1972. It - 2 - appears that subsequently after 7 years, an execution was levied vide Execution case no. 12/1979 by the plaintiff-opposite party being the decree holder and in course of execution proceeding, the Executing Court had allowed sale in favour of the plaintiff-decree holder for a sum of Rs. 2017.71 paise, whereafter it is said that delivery of possession was also effected on 6.1.1982 and the Execution Case was consequently finally disposed of on 16.6.1984. The petitioner, the judgment debtor, however, claiming that he had not been given any notice either at the stage of execution or in course of sale, had filed an application on 5.11.1984 for setting aside the sale and took a plea that he came to know of such sale only on 3.9.1984. Such application for setting aside the sale, Misc. Case no. 42/1984 was contested by the parties and after leading of evidence, the Executing Court, by an order dated 26.8.1995 had dismissed the application filed by the petitioner primarily on the ground that the application filed by the petitioner under Order XXI Rule 90 was barred by limitation. The appeal carried by the petitioner before the Lower Appellate Court has been dismissed by an order dated 3.5.2008 affirming the order of the Trial Court which has also given an additional reason, holding that as a matter of fact once the sale had been confirmed, the application filed by the petitioner under order XXI Rule 90 C.P.C. for setting aside the sale was itself not maintainable. - 3 - Mr. Shukla, learned Senior Counsel appearing on behalf of the petitioner while assailing the aforesaid two impugned orders has advanced the following three fold submissions namely::- (a) The view taken by the Lower Appellate Court that a proceeding under Order XXI Rule 90 was not maintainable after confirmation of sale is wholly unsustainable inasmuch as no such restriction can be found either in the statute or in the judgment. (b) The view taken by the Executing Court that the application filed under Order XXI Rule 90 by the petitioner was barred by limitation, also suffers basically from an incorrect application of law inasmuch as the repealed provision of Article 127 of Limitation Act has been relied by the Court for holding that the period for setting aside sale in execution of a decree was only 30 days and as the application filed by the petitioner was admittedly filed after two months, the same was barred by limitation. Mr. Shukla, in this context, has invited the attention of this Court towards the amendment made by Act 104 of 1976 wherein the word 30 days had been replaced by 60 days in the context of Article 127 with regard to setting aside a sale in execution of a decree and submits that the application filed by the petitioner within 60 days of knowledge of sale was actually not - 4 - barred by limitation. (c) The petitioner who was never given any notice either in course of execution proceeding or even in course of the proceeding undertaken for sale, could not have been left without remedy specially when his 29 decimals of land is said to have been auctioned sale for a paltry sum of Rs. 2017.71 paise for fulfillment of his liability of Rs. 1274/- only. In this regard, it has thus been contended on behalf of the petitioner that both the courts have failed to take into consideration that the land valuing Rs. 20,000/- approximately was auction sold by the court in favour of the decree holder-opposite party not only without ensuring service of notice of sale and proclamation but also by practicing fraud and when oral and documentary evidence was led by the petitioner to prove this aspect, neither of the two Courts had considered the same. Reliance in this context has also been placed by Mr. Shukla on the judgment of Apex Court in the case of Nani Gopal Paul Vrs. T Prasad Singh and ors., reported in A.I.R. 1995 S.C. 1971 and judgment of this Court reported in 1994 (1) B.L.J.R. 662 as also a full Bench judgment of Madras High Court in the case of A.P.V. Rajendran vrs. S.A. Sundararajan and Others reported in A.I.R. 1980 MADRAS 123 as also another judgment of Madras High Court in the case of M.S. Sundaram vrs. Madurai Solaibadra Iyer - 5 - reported in A.I.R. 1995 MADRAS 125. Mr. Jain, learned counsel for the opposite party, on the other hand has submitted that:- (a) This Court exercising this power under section 115 would normally not interfere with finding of the fact as with regard to the issue as to whether notices were served or not when both the courts have found that summons were properly served before conducting sale. In this regard, he placed reliance on a judgment of this Court in the case of Sachida Nand Mishra Vrs. Vishwanath Mishra reported in 2006(4) P.L.J.R. 259. (b) He has further submitted that even if the plea of limitation of 60 days is taken into account, admittedly the petitioner had filed his application beyond 60 days inasmuch as the date of knowledge claimed by him in the application under order XXI Rule 90 was 3.9.1984 but the application was filed on 5.11.1984 which is beyond the period of 60 days. Explaining this aspect, he has submitted that as a matter of fact, no application was filed for condoning the delay and therefore, even if the court below had incorrectly held, the limitation can be only of 30 days, the position would remain the same because the petitioner had not filed such an - 6 - application even during the period of 60 days. (c) Placing reliance on a judgment of the Apex Court in the case of Sri Ram Maurya Vrs. Kailash Nath and Others reported in A.I.R. 2000 S.C. 3402, it has been contended that a decision of the Court for setting aside an auction sale being a part of judicial action should not be resorted lightly on mere ipsi dixit or surmises and conjecture of an interested party such as judgment debtor and sanctity of such sale must be preserved unless there are very compelling reasons which would vitiate the entire sale. This Court, however, on perusal of the materials on record and in the light of the submissions of both the parties would find that this application must succeed on the solitary ground that the Lower Appellate Court has proceeded on a wholly incorrect premise and thus has committed a jurisdictional error in holding that once the sale is confirmed, the same cannot be made subject matter of an application under Order XXI Rule 90 C.P.C. for its being set aside. In this context, the following provision of Order XXI Rule 90 would itself make it clear that no such restriction has been placed in the statute making the confirmation of sale as a condition precedent for not entertaining the application of setting aside the sale. Order XXI Rule 90 C.P.C. reads as - 7 - follows:- 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, or 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 conducting 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 application 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. As a matter of fact, this aspect of the matter now also stands settled inasmuch as the Full Bench of Madras High Court in the case of Rajendran (supra) has held that an application for setting aside the sale can definitely be maintained by the judgment debtor under Order XXI Rule 90 C.P.C. even after such sale has been confirmed. As a matter of fact, if the aforesaid view of the Lower Appellate Court in the impugned order is taken to its logical conclusion, a judgment debtor aggrieved by an order of sale who had never been served with any notice in terms of - 8 - order XX1 Rule 66 C.P.C. and therefore could never object to the same prior to the confirmation of sale would be left high and dry and absolutely without remedy. That being so, neither the legislature under Order XX1 Rule 90 has envisaged such a restriction nor it can be even otherwise held as a held proposition of law that an application for setting aside the sale would not be maintainable once the sale has been confirmed by the Court. The Scope of Order XX1 Rule 90 in fact extend to any type of material irregularity in publishing and conducting the sale as was held in the Full Bench judgment of Madras High Court in the Rajendran case supra. Following the ratio of Rajendran’s case, the Madras High Court in the Sundaram’s case supra had examined the scope of Order XX1 Rule 90 and the expression “material irregularity” used therein in the context of setting aside a sale at the behest of a judgment debtor having no notice of sale and it was held therein that: “The resultant position is that the petitioners were not served with any notice of the execution proceedings at any time. There is no acceptable evidence to show that they have got knowledge of the execution proceedings. Without any notice to the judgment-debtor, if the property is sold in court auction, it is a nullity and it is liable to be set aside. Hence the petition filed in the court below deserves to be allowed.” Thus on a closer analysis of the law on the subject, it must be held that a sale held in execution of a decree without notice to the judgment debtor is nullity and not - 9 - merely voidable but void as against the person to whom notice should have been, but was not, issued. Such sale irrespective of its confirmation can be set aside at any stage at the behest of the judgment debtor. In that view of the matter the order of Lower Appellate Court refusing to set aside the sale only on the ground of confirmation of sale is patently a jurisdictional error. The next issue of limitation, as decided by the Executing Court and deemed to have been confirmed by the Lower Appellate Court is also unsustainable inasmuch as no conscious effort has been made by either of the court to find out as to whether the application filed by the petitioner was barred by limitation in terms of Article 127 of the Limitation Act. The Trial (Executing) Court has gone to hold that the period of limitation was 30 days and therefore it had made a very casual observation that the application filed by the petitioner after two months was definitely barred by limitation. The Lower Appellate Court on the other hand has in fact given no specific finding in this regard while affirming this part of the order of the Trial Court. When a provision of law specially with regard to limitation has been wrongly construed and applied, 30 days having been taken to be period of limitation for setting aside the sale and the application of the petitioner held to be barred by limitation on that ground alone, that by itself would - 10 - amount to a clear jurisdictional error. The Court below was required to look into this aspect in a more elaborate manner because Mr. Shukla has contended that in the month of November, 1988, the courts were closed on account of mass protest and curfew imposed due to assassination of Mrs. Indira Gandhi, the then Prime Minister of this country, on 31.10.1988 and as such the period of 60 days having been completed in or around 3rd of November, 1984, the application had been filed by the petitioner on the first possible day of the reopening of the Court on 5th of November, 1984. Unfortunately, this aspect of the matter has not, at all, been gone into by either of the two courts below. The last but not the least, the submission of service of notice and the prejudice being caused to the petitioner has also not been gone into by either of the Courts in a manner in which it was required to be examined. Here is a case where the petitioner asserts that there was an ex parte decree and in execution proceeding also, he had never been served any notice. He further submits that no notice under Order XXI Rule 54 C.P.C or Order XXI Rule 66 C.P.C was served on the petitioner and therefore, the plea of non service of notice/summons should have examined with utmost care and caution. That having been not done, this Court had itself examined the records of the Court below - 11 - and has found that except for the report of process server of refusal of summons by the petitioner, there is no other material to show that summons were served on the petitioner. The Process server however, had not been examined in course of deposition when the application under Order XXI Rule 90 was heard by the Court below. Thus, there would be no evidence to show of an effective service of notice on the petitioner. If that be so, it would be a case of sale being void and thus vitiated by material irregularity in terms of Order XXI Rule 90 C.P.C.. The petitioner has come out with a firm case that he was never served with any notice at any stage nor was heard by the Court below in course of execution proceeding. This aspect again would require a detail examination of record and in case it is found that as a matter of fact, there is nothing to show of an effective service of notice in terms of Order V Rule 19 C.P.C. the Court has to presume that only report of refusal of service by process server cannot be taken to be so sacrosanct that right of the petitioner as with regard to his 29 decimals of land would be allowed taken away for a paltry sum of Rs. 2016/- in a sale behind his back in execution of an ex-parte decree. The material prejudice thus being writ large on the face of record, the plea of absence of material irregularity in the sale as raised by counsel for the opposite party has to be - 12 - only noticed for its being rejected. It has to be taken into account that the notice for proclamation of sale is said to have been served on 5.10.1981 by way of refusal of service of summons by the petitioner and the auction is said to have taken place on 21.11.1981 and the sale is said to have been confirmed on 22.12.1981. The petitioner has led evidence that minimum value of the land of 29 decimals (nearly 7 kathas) in the vicinity of Hajipur town even in the year 1981 would not have fetched a paltry sum of Rs. 2016/- i.e. less than Rs. 300/- per katha. While this Court would not like to make any speculation as with regard to the mode and modality of auction sale in a Court proceeding only because the amount is abnormally low, it would definitely like to observe that in case, there was no service of notice/summons as being asserted by the petitioner, the evidence led by him with regard to valuation of land in absence of its being contradicted by the plaintiff-decree holder-opposite party needs to be gone into in a more graphic manner. The reliance placed by the counsel for the opposite party on the judgment of this Court in the case of Sachida Nand Mishra (supra) in the opinion of this Court is wholly misconceived for a simple reason that in that case, there was a clear finding that the notice of the execution proceeding was served on the defendant-judgment debtor - 13 - and a complain was only made with regard to non-service of sale notification. It was, in this regard that this Court had held that the sale would not stand vitiated on the ground of improper service of notice of sale unless it was shown that material prejudice had been caused. What is significant is that in the case of Sachida Nand Mishra (supra) this Court basically interfered with the order of the Lower Appellate Court on the ground that the view taken by it that a decree holder was prohibited from participating in purchase of the suit property in an auction sale was against the specific amendment made in the provision of Order XXI Rule 72 under Patna High Court Rules. In fact this Court had remitted the other issues back to the Lower Appellate Court for reconsideration. The submission on the issue of material prejudice as again canvassed by the counsel for the opposite party on the basis of judgment of the Apex Court in the case of Sri Ram Maurya (supra) is also far fetched. It is so because what was held by the Apex Court in that case was that in absence of a pleading showing material irregularity, it was not open to the Executing Court to set aside the auction sale. In the present case, there is clear averment of material irregularity in the sale in the application filed by the petitioner in as much as paragraphs 3 to 7 thereof reads as follows: “(3) That there was no publication nor the applicant had any knowledge of the money - 14 - suit. Otherwise the applicant would have appeared and contest the suit. (4) That after obtaining the fraudulent money decree, it was put to execution in execution case no. 12/79 and in the execution case also no notice under order 21 rule 22 C.P.C. was served on the applicant nor the applicant had any knowledge of the execution case nor the valuation notice was served on the applicant nor any other processes namely notice of attachment and said proclamation had been served in the mufassil. The Court peon never went in the village effect service of process and the reports submitted by the peon on the various processes are wrong and incorrect and collusive and applicant was kept in complete dark about the money suit and money execution. (5) That the court peon never went in the village to effect D.P. nor the O.P. came in possession of the land S.P. No. 32 and 67 of khata no. 33 of village:- Senduari, P.s.- Hajipur, District- Vaishali. (6) That there was no publication of sale proclamation and the bidders had no information of the alleged sale nor the applicant had any knowledge of the alleged sale and 29 dec. of valuable land worth rupees twenty thousand had been sold only for a very small amount of the Rs. 2017.17 N.P. The land is very fertile and if there had been publication of the sale proclamation the small amount of Rs. 2017.17 N.P would not have been fetched at the court auction sale - 15 - and this is a ground to show that the fraud was practiced in publishing and conducting the sale. (7) That the applicant had no information regarding alleged court auction sale dated 20.11.81 and the applicant came to know about the execution case for the first time on 3.9.84 through Dasti summon of village Senduari and thereafter the applicant inspected the record of the execution case and could know about the fraud perpetrated on the applicant and was simple surprised to know the same.” That being so, this Court in presence of aforesaid specific pleadings of material irregularity in the sale would find that the ratio of judgment of the Apex Court in Sri Ram Maurya would be wholly inapplicable to the facts of this case. The last aspect which now make the issue in hand to be still more significant is that the petitioner has asserted before this Court that even though on paper, the decree holder and auction purchaser i.e. the opposite party may be said to have been delivered the possession of the land in question, the facts remains that the petitioner still is in possession of the same and this aspect of the matter as asserted by him while seeking injunction before this Court, when there was a threat of his being dispossessed on account of proposed sale by the plaintiff-opposite parties - 16 - had not been denied by the opposite party. Mr. Shukla, therefore, submits that the petitioner is still in possession and has a valuable interest in the suit property by 29 decimals of land. This Court, however, would not like to make any observation with regard to assertion of the petitioner but then as it has found that the application filed by the petitioner for setting aside sale has been rejected on a wholly illegal and unsustainable grounds by both the Courts, this Court would set aside both the impugned orders and remit the matter back to the Executing Court for fresh disposal of the application under Order XXI Rule 90 C.P.C. filed by the petitioner. This Court would also direct that status quo in respect of possession of land would be maintained by both the parties till the Trial (Executing) Court would re-consider the application filed by the petitioner under Order XXI Rule 90 in the light of the materials on record and pass a fresh order. Such exercise should be completed expeditiously preferably within a period of six months from the date of receipt/production of copy of this order. With the aforementioned observation and direction, this application is allowed. Let the Lower Court records be also transmitted back forthwith to the concerned Court. - 17 - Patna High Court Dated 17th November, 2008 AFR/pkj (Mihir Kumar Jha,J)