RSA No.278 of 1986 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second appeal No.278 of 1986 Date of Decision : 31.05.2011 Harbans Singh Cheema .......Appellant Versus Harbant Singh and another .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri Harbhagwan Singh, Sr. Advocate, with Sh. Dinesh Sharma, Advocate, counsel for Harbans Singh Cheema, plaintiff-appellant. Shri Vikas Behl, Advocate, for LRs of respondent No.1 Harbant Singh. Shri Arun Jain, Sr. Advocate, with Shri Kulwant Singh Boparai, Advocate, counsel for LRs of respondent No.1-Charanjit Singh -auction purchaser. **** JITENDRA CHAUHAN, J. C.Ms No.4691 of 2011 and 4828 of 2011: C.Ms are allowed subject to all just exceptions. Documents Annexures A.1 to A.3 and reply to the CM are taken on record. Regular Second appeal No.278 of 1986: This regular second appeal has been filed by Harbans Singh Cheema, the appellant against the judgment and decree dated 10.1.1986, whereby the learned Additional District Judge, Ludhiana, dismissed the appeal preferred against the judgment and decree dated 18.02.1985 passed by the Sub Judge I class, RSA No.278 of 1986 -2- Ludhiana, by which the suit of the plaintiff appellant Harbans Singh Cheema, was dismissed. It is a four-decades old litigation between the maternal uncle, Harbant Singh and his nephew, Harbans Singh Cheema. The brief back ground is that on 23.4.1950, Sohinder Singh purchased the property No.130 from the Rehabilitation Department for Rs.11,453/-. A conveyance deed of the property was issued in his name. On 2.11.1950 Sohinder Singh entered into an agreement of sale with Harbant Singh and Harbans Singh Cheema. On 29.6.1968 Sohinder Singh sold property bearing No.130 R to Harbant Singh for a sum of Rs.7000/-. Harbant Singh then was in the Military Service. Harbans Singh Cheema sister’s son of Harbant Singh started using the property as licencee from 8.9.1956 without payment of any licence fee. On 2.1.1971, the said licence was revoked and he was asked to vacate property No.130 R, Model Town, Ludhiana. The plaintiff- appellant did not vacate the property. Ultimately Harbant Singh filed a civil suit for granting a decree of declaration and mandatory injunction regarding Kothi No.130 R, Model Town, Ludhiana, which was decreed on 25.4.1978, vide judgment Ex.P.9. In this civil suit, Harbant Singh maternal uncle was declared owner of the Kothi No.130 R, Model Town, Ludhiana; Harbans Singh Cheema was proved as a licencee under his maternal uncle Harbant Singh and as the licence stood revoked, the plaintiff appellant Harbans Singh Cheema was directed to vacate the Kothi No.130 R, Model Town, Ludhiana and put Harbant Singh in vacant possession of the same. Harbans Singh Cheema went in Civil appeal No.363/29 against the said judgment and decree dated 25.4.1978 in the Court of the Additional District Judge, Ludhiana, which, too, was dismissed. On 27.9.1979, the plaintiff appellant again tried his luck before this Court by filing Regular Second appeal No.2127 of 1979, which was dismissed on 15.10.2003. The Special Leave to Appeal (Civil) No.15795 of 2004 filed by Harbans Singh Cheema was dismissed by the Hon’ble Supreme Court on 17.01.2005 (Annexure A.3). This resulted into conclusion of the first round the litigation. RSA No.278 of 1986 -3- As no stay was granted by this Court during the pendency of Regular second appeal No.2127 of 1979, filed by Harbans Singh Cheema the plaintiff appellant, an Execution application No.299 of 10.10.1979 was filed by the decree holder, Harbant Singh, for executing the Judgment Ex.P.9 and decree dated 25.4.1978. On 13.10.1979, an objection under section 47 of the Code of Civil Procedure was filed by Harbans Singh Cheema, the plaintiff-appellant (the judgment debtor in the execution proceedings), which was dismissed on 10.4.1980 vide Ex.P.5 by the Executing Court. On 15.12.1979, an application under Order XXI rule 32 of the Code of Civil Procedure was filed against the judgment debtor (the present plaintiff appellant). As the plaintiff appellant had not complied with the judgment and decree dated 8.10.1980 and handed over the vacant possession of Kothi No.130 R, Model Town, Ludhiana, the Kothi No.130 L, Model Town, Ludhiana owned by the plaintiff appellant was attached on 23.4.1980 vide report Ex.P.1 of Bailiff. The Executing Court issued warrant of arrest of JD and put him to civil prison. An application under section 47 of the Code read with order XXI Rule 58 of the Code of Civil Procedure for cancellation of the order of arrest and detention of JD in civil prison was filed. An application under Order XXI rule 32 (3) of the Code was moved by the plaintiff appellant himself giving his consent for the sale of his attached property, copy of which is Annexure A.1 filed in this appeal. The appellant, Harbans Singh Cheema, yet not tired of continuing with his legal battle, on 12.11.1980, filed the second objection petition under section 47 read with section 151 of the Code against the execution of the decree with a prayer for dismissing the execution application of Harbant Singh, the decree-holder. The same was dismissed on 23.2.1981 by the Executing Court. The judgment debtor i.e. the plaintiff appellant filed civil revision of 1981 in this Court against the order dated 23.2.1981, which was also dismissed on 8.7.1981. In the meantime, on 18.3.1981, an application under order XXI rule 32 of the Code for the sale of the attached property was moved on 18.3.1981 by RSA No.278 of 1986 -4- Harbant Singh, the decree-holder. On 3.9.1981, Kothi No.130 L, owned and possessed by the plaintiff appellant, was auctioned and by fall of hammer, the bid break in favour of auction purchaser Charanjit Singh respondent no.2 in open auction conducted by Shri Harjit Singh Sandhu, Court Auctioneer, vide report Ex.P.11. The sale was confirmed on 28.10.1981, vide Ex.P.6. Sale certificate Ex.P.7 was issued in favour of Charanjit Singh respondent no.2 on 18.11.1981. Lust of grabbing the property of his maternal uncle was so high in the plaintiff appellant that he got attached his Kothi No.130 L, Model Town, Ludhiana, got it auctioned, the sale of which was confirmed, but even then did not comply with the civil court decree for vacating Kothi no.130 R, Model Town, Ludhiana. As the sale certificate, Ex.P.7, was issued, now the interest of third person- the auction purchaser commenced, who can be treated as bona fide purchaser for valuable consideration and purchased the property in an open auction. Charanjit Singh auction purchaser now came forward to get the possession of Kothi No.130 L, Model Town, purchased by him in an open auction and moved an application on 5.1.1982. The plaintiff appellant now opened two fronts. On one side he was not vacating Kothi No.130 R for which eviction order was passed against him and on the other side he is defending his own Kothi no.130 L. On 9.1.1982, objections, Ex.P.4, under Order XXI rule 32 of the Code were filed by the plaintiff appellant. The said objections, Ex.P.4, were dismissed on 6.4.1983 vide order Ex.P.3. The plaintiff appellant again challenged the order Ex.P.3 dated 6.4.1983 in this Court which was also dismissed on 19.4.1983. The plaintiff tried his luck in the Apex Court by challenging the orders dated 6.4.1983 of the Executing Court and order dated 19.4.1983 of this court by filing SLP, which was also dismissed. The second round of litigation ended here. The third round of litigation begins. In order Ex.P.3, while dismissing objections, the Executing Court was of the view that “the only remedy available to him is to challenge the sale by means of a suit against the auction purchaser.” On 6.9.1983, the present plaintiff appellant namely Harbans Singh RSA No.278 of 1986 -5- again knocked the door of the civil court at Ludhiana by filing the present Civil suit No.458 of 1983 against Harbant Singh his maternal uncle and Charanjit Singh, the auction purchaser, which was dismissed on 18.2.1985 by Sub Judge I class, Ludhiana. The plaintiff appellant filed Civil appeal No.216/37 of 1985 before the Additional District Judge, Ludhiana challenging the dismissal of Civil suit, which was dismissed by the Ist Appellate Court on 10.1.1986. Then, the plaintiff appellant filed this regular second appeal No.278 of 1986, which was admitted on 30.1.1986 by this court. This is the forty years history of this litigation. Still, neither the original decree holder Harbant Singh nor Charanjit Singh auction purchaser could reap the fruits of their hard earned investment in Kothi no.130 R and 130 L, respectively. As per the pleadings in Civil Suit No.458/83-T of 1983-84, decided on 18.2.1985, Harbans Singh, the appellant plaintiff filed this suit for declaration to the effect that the auction sale dated 2.9.1981, confirmed on 28.10.1981 and subsequently sale certificate issued being illegal, invalid and not binding upon the plaintiff. He also sought permanent injunction restraining defendants respondents Harbant Singh and Charanjit Singh from obtaining possession of property bearing No.130 L, Model Town, Ludhiana (Municipal No.B.XVIII S 254). The plaintiff appellant pleaded some irregularities and defect in procedure for conducting auction, which had already become final. The main grouse of the plaintiff is that the attachment could not remain in force for more than six months as no application for sale of the property was made within a period of six months. The kothi was attached on 23.4.1980 vide Ex.P.1; the property was sold on 3.9.1981 vide Ex.P.11; application under Order XXI rule 32(3) of the Code was made on 18.3.1981 and orders for conducting auction were made on 19.3.1981 without notice to the plaintiff appellant by the Executing Court. The application could have been made on or before 23.10.1980 and after this requisite period the attachment automatically ceases. Provisions of Order XXI rule 66 of the Code RSA No.278 of 1986 -6- were also not complied with. No opportunity to defend the sale was granted and principles of natural justice were not complied with. The defendants contested the suit on various grounds. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the declaration prayed for? OPP 2. Whether the plaintiff is entitled to the injunction prayed for? OPP 3. Whether the suit is not maintainable in view of the provisions of section 47 CPC? OPD 4. Relief. The learned trial court vide judgment and decree dated 18.2.1985 dismissed the suit of the plaintiff appellant holding that the plaintiff was not entitled to the declaration prayed for and the suit was barred in view of the provisions of section 47 of the Code of Civil Procedure. The plaintiff was not found entitled to the injunction prayed for. The plaintiff appellant went in Civil Appeal No.216/37 of 1985, which was also dismissed on 10.1.1986. Aggrieved against both the judgments and decrees of both the courts below, the plaintiff appellant came up in this regular second appeal, which was admitted on 6th August, 1986. On 3.2.1986, while issuing notice of motion, this Court stayed further proceedings of recovery of possession in the trial Court/Executing Court, till further orders. Shri Harbhagwan Singh, Sr. Advocate, counsel for the plaintiff appellant argued that there are defects and irregularities in conducting the sale of Kothi No.130 L, Model Town, Ludhiana, which caused miscarriage of justice to the plaintiff appellant. No notice was issued before conducting or finalization of sale and the plaintiff appellant was not associated in the auction proceedings. The property was sold at a throwaway price. He further contended that provisions of Order XXI rule 32(3) of the Code are mandatory and since the period prescribed RSA No.278 of 1986 -7- for attachment lapsed, the attachment ceases to exist. Thereafter, the property could not have been sold by the court in auction. He pointed out that the attachment remained in operation from 23.4.1980 till 18.3.1981, when an application was moved by the decree holder respondent no.1 for sale of the attached property and this was clearly after eleven months. So, no auction could have been conducted on the basis of non-existing attachment order, which became ineffective. Once attachment found to be lifted, the subsequent proceedings such as conducting of sale and confirmation of sale are void. He referred to Badri Pershad vs Fakira and others-1911 Punjab Law Reporter 628; Ma We Gyan vs Maung Than Byu AIR 1937 Rangoon 126; and Gahur Ali Karikar and others vs Smt Asia Khatun- AIR 1933 Calcutta 96. On the other hand, Shri Vikas Behl, Advocate, counsel for respondent no.1 argued that only that litigant, whose conduct is above board and comes to the court with clean hand, is entitled to discretionary relief of declaration and permanent injunction. The conduct of the plaintiff appellant in not complying with the decree of mandatory injunction for vacating Kothi No.130 R, Model Town, Ludhiana of his own maternal uncle, which he had been using it as a licencee, disentitles him for any discretion from a court of law. He points that at every step he misused the process of law in order to thwart the execution of the decree Ex.P.9. Till date, the appellant has not handed over the vacant possession of the kothi to respondent no.1. All the proceedings were conducted in accordance with law. He had been attending the entire execution proceedings either himself or through his wife as attorney. Shri Arun Jain, Sr. Advocate, learned counsel for Charanjit Singh, the auction purchaser, argued that even if there is any irregularity that will not vitiate the sale. He contended that for the sake of argument even if it is taken that the attachment ceased to exist, even then the court has power to auction the property directly without attachment. The authorities cited by the counsel for the appellant are prior to the amendment of the Code of Civil Procedure and are not RSA No.278 of 1986 -8- applicable to the facts of the present case. The counsel further argued that both the courts below have gone against the plaintiff appellant. I have heard the learned counsel for the parties and have carefully gone through the record with their able assistance. The only short questions of law to be determined by this court are as to “Whether the auction sale of property No.130 L is illegal, irregular, void and not binding on the plaintiff appellant.” and “Whether a separate suit challenging the irregularities in execution proceedings is maintainable?” The following chart of dates would help to appreciate the issue in question:- 23.04.1980 Vide Ex.P.1 property no.130 L, Model Town, Ludhiana was attached. 28.10.1980 The appellant/judgment debtor himself filed an application under Order XXI rule 32(3) of the code for the sale of the attached property vide Annexure A.1 placed on record in this regular second appeal. 18.3.1981 An application under Order XXI rule 32 of the Code for sale of attached property was moved by the decree holder/respondent no.1. 19.3.1981 The Executing Court ordered for auction. 3.9.1981 Vide Ex.P.11, Charanjit Singh respondent no.2 purchased Kothi No.130 L, Model Town, Ludhiana, in Court auction. 28.10.1981 Vide Ex.P.6 the auction sale was confirmed by the Executing Court, in favour of respondent no.2 auction purchaser. 18.11.1981 Sale certificate Ex.P.7 regarding sale of Kothi No.130 L, Model Town, Ludhiana, issued in favour of Charanjit Singh respondent no.2 auction purchaser by the Executing Court. 6.4.1983 Vide Ex.P.3 the Executing Court dismissed the objections filed by the appellant plaintiff in Execution application No.7 of 1982 in which issue “Whether the sale dated 3.9.1981 is liable to be set aside?” was decided in favour of auction purchaser. RSA No.278 of 1986 -9- The amended relevant provisions of the Code of Civil Procedure are reproduced hereunder: “Section 47…Questions to be determined by the court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. (2) XXXXXXXXXXXXXXX Explanation I.- XXXXXXXXXXXXXXX Explanation II-. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” “Section 51…Powers of Court to enforce execution.- Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree- (a) XXXXXXXXXXXX (b) By attachment and sale or by sale without attachment of any property; (c) By arrest and detention in prison [for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section]; RSA No.278 of 1986 -10- (d) XXXXXXXXXXXX (e) XXXXXXXXXXXX Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” “Order XXI Rule 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.-(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed in a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for [six moths] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such RSA No.278 of 1986 -11- compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree- holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. [Explanation.- For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.]” “Order XXI Rule 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, 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 RSA No.278 of 1986 -12- 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. Explanation.- The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]” From the above law, it is clear that even if there is no attachment of the property, it cannot become a ground for setting aside the sale, which stood already confirmed, sale certificate issued and the interest of the auction purchaser came in. The suit filed by the appellant plaintiff for setting aside the sale on the ground of there being any irregularity in the attachment of the property is not maintainable as per the provisions of section 47 of the Code. As per Explanation II of section 47 of the Code (supra), even auction purchaser of property at a sale in the execution of a decree is to be deemed to be a party in the suit. It would be relevant to mention that the said Explanation I and II have been added by the Amending Act of 1976. As per the provisions of section 51 (supra) of the Code, the sale can be made either by attachment of property or without attachment. Meaning thereby the Court has the power to directly put the property to auction without attachment. There is no objection raised by the appellant plaintiff after the sale of the property till its confirmation, the present suit is absolutely frivolous. The sale can only be challenged on the ground of fraud. There is no pleadings of fraud or that any prejudice has been caused or that the plaintiff appellant has sustained substantial injury by reason of such irregularity or fraud. In the absence of such pleadings and proof thereof, no objection can be entertained after the confirmation of the sale either by filing a separate suit or in the same RSA No.278 of 1986 -13- execution proceedings. The plaintiff appellant has already exhausted his remedy in execution proceedings up to the Apex Court. More over, plaintiff while appearing as PW1, has stated in his cross-examination that his wife and his counsel have been appearing in the execution proceedings on his behalf and thus he had the knowledge regarding the proceedings. In fact after the warrant of arrest of the plaintiff appellant were ordered to be issued, the plaintiff appellant himself moved an application (Annexure A.2) on 8.10.1980 for the sale of the property. While appearing as PW1, Harbans Singh Cheema stated in his cross-examination that “… …..It is correct that I was represented by my wife by way of special power of attorney in favour of my wife, in the court, who has been appearing in the court on my behalf. It is correct that Parveen Garg was my counsel and he has been appearing in the execution……” So, the pleadings to the extent that no opportunity was granted to the plaintiff appellant to contest the auction or sale, are found to be against record. There is no pleading in the plaint as to what was the tentative market value of the property at the time of the auction. There is no pleading in the plaint that the sale caused substantial injury to the plaintiff appellant, if so, as to what type of substantial injury he received. It is well known that