IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.500 of 2006 1. M/S HANUMAN BUX @ HANUMAN BAKS GAURI SHANKAR, a registered partnership firm, at Jainagar, P.O. and P.S. Jainagar, District Madhubani through its partner Sri Pashupati Kumar Saraf 2. Pashupati Kumar Saraf, son of Sri Radheshyam Saraf, resident of Jainagar, Ward No.2, P.O. and P.S. Jainagar, District Madhubani … Plaintiffs-decree holders-Petitioners Versus 1. SUBODH SINGH, son of late Satyanarayan Singh 2. Smt. Nilu, wife of Sri Gopal Prasad Singh 4.(I)Nitesh Kumar, minor son of deceased 4.(II)Kajal Kumari, minor daughter of deceased O.P.No.4 5. Birendra Kumar Singh, son of Raghunath Singh 6. Smt. Indu Devi 7. Smt. Bindu Devi, both daughters of Raghunath Singh 8. Bipin Bihari Singh, son of late Rampujan Singh 9. Santosh Singh, son of Bipin Bihari Singh 10. Anil kumar Singh 11. Paritosh Kumar Singh, both minor sons of Sri Bipin Bihari Singh, under the guardianship of their father and natural guardian Sri Bipin Bihari Singh 12. Abadhesh Singh 13. Ashok Singh both sons of late Chandrika Prasad Singh 14. Smt. Malkini Devi, widow of late Chandrika Prasad Singh 15. Smt. Lalita Devi, wife of Sri Bijay Singh 16. Smt. Chinta Devi, wife of Sri Ashok Singh 17. Smt. Saroj Devi, wife of Sri Ramjanam Singh 18. Smt. Usha Singh, wife of Sri Karag Bahadur Singh All residents of Jaynagar, Ward No.2, Mahabir Chowk, P.O. and P.S. Jaynagar, District Madhubani … Defendatns-judgment debtors-O.P.1st set 19. Parmeshwar Lal Sarraf 20. Radheshyam Sarraf both sons of Late Gauri Shankar Sarraf 21. Santosh Kumar Saraf 22. Govind Kumar Saraf 23. Giridhar Kumar Saraf, all sons of Sri Parmeshwarlal Sarraf All residents of Jainagar, Ward No.2, P.O. and P.S. Jaynagar, District Madhubani … Plaintiffs- Decree holders- O.P. 2nd set ----- For the petitioners : Mr. Sukumar Sinha, Sr.Adv. With Mr.Susanta Kr.Roy,Adv. For O.Ps.No.8,12 & 13:Mr. Shashi Shekhar Dwivedi, Sr.Advocate. with Mr. Ashok Kumar Prasad,Adv. 2 For O.Ps.No.4(I),4(II), 10 & 11 :Mr.Neeraj Singh,Adv. PRESENT THE HON'BLE JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J. Heard counsel for the parties. The petitioners, plaintiffs-decree holders, being aggrieved by an order of the executing court dated 5.1.2006 in Money Execution Case No. 2/2002 have moved this Court and their plain and simple case is that the court below has committed an apparent jurisdictional error in entertaining and allowing the application dated 18.7.2005 of the defendants-judgment debtors-O.Ps. 8, 12 and 13, permitting them to assail the sale dated 20.6.2005 even without compliance of mandatory provision of deposit of 5% of the sale amount and the entire amount of sale in terms of Order 21 Rule 89 of the Code of Civil Procedure. Mr. Sukumar Sinha, learned Senior counsel for the petitioners, in this regard has submitted that when the money suit No. 5/1998 filed by the plaintiffs-petitioners for realization of Rs. 2,71,036/- had been decreed on 19.12.2001 with a direction to the defendants-judgment debtors-O.Ps. to pay the amount within 60 days and when the decretal amount was not deposited in the aforementioned 3 period of 60 days, the court below having proceeded in the matter in the execution case filed by the plaintiffs- petitioners, Money Execution Case No. 2/2002, and put the property on auction sale on 20.6.2005 as well as the sale to have been effected on payment of Rs. 4,25,000/- in favour of the decree holders could not have even entertained much less allowed the aforesaid application dated 18.7.2005 without tendering the amount in question involved under sale within a period of 30 days from the date of sale and thus ought to have not passed the impugned order which has the effect of extending time for deposit of the amount under sale in complete violation of the spirit of Order 21 Rule 89 C.P.C.. Mr. Sinha in that context has placed his strong reliance on the judgment of the Apex Court in the case of P.K.Unni vs. Nirmala Industries & ors., reported in AIR 1990 S.C. 933. Mr. Shashi Shekhar Dwivedi, learned Senior counsel appearing on behalf of the contesting defendants-judgment debtors- O.Ps. No. 8, 12 and 13, on the other hand, would submit that the court below has in fact only passed an order for calculation of the amount 4 which the defendants-judgment debtors were required to pay in terms of Order 21 Rule 89 C.P.C. and since such application offering to pay the amount with the blank Challan for its being filled by the office of the court was filed well within 30 days of the sale, it has to be held that the defendants had already deposited the amount in view of their filing of the application on 18.7.2005 i.e. well within 30 days of the auction sale. In this regard Mr. Dwivedi has placed reliance on the Division Bench judgment of Calcutta High Court in the case of Shyama Charan Auddy & anor. vs. Smt. Bimala Bala Sen & anor., reported in AIR 1993 Calcutta 14. Mr. Dwivedi in fact had also questioned the very maintainability of the civil revision application on the ground that by the impugned order the court below had not decided any issue inasmuch as by allowing the application of the defendants-judgment debtors dated 18.7.2005 it had merely directed the office of the court to assess the amount to be deposited by the judgment debtors under Order 21 Rule 89 C.P.C. which could not be subjected to revisional jurisdiction of this Court under section 115 C.P.C. 5 Mr. Sukumar Sinha in reply to the question of maintainability would submit that import of the impugned order is virtually allowing the prayer of the defendants-judgment debtors- O.Ps. as with regard to deposit of the amount well after expiry of the period of 30 days in view of the sale taking place on 20.6.2005 and such deposit being made on 23.1.2006 in terms of the impugned order having been passed on 5.1.2006 and as such, the order of the court below cannot be said to be a routine order, especially when it has also decided the issue as with regard to maintainability of the application filed by the defendants-judgment debtors in terms of Order 21 Rule 89 C.P.C. even when their separate application for setting aside the sale in terms of Order 21 Rule 90 C.P.C. was also pending. He accordingly would submit that the civil revision application in the given set of facts and circumstances is maintainable as impermissible deposit after expiry of the period of 30 days has been allowed by the court below which would definitely amount to jurisdictional error within the ambit of section 115 C.P.C. This Court having given anxious 6 consideration to the question of maintainability as raised by Mr. Dwivedi, learned Senior counsel, must hold that the same is without any substance. In a case like this where the defendants-judgment debtors had filed two applications both dated 18.7.2005, the first one for deposit of the amount involved under the sale dated 20.6.2005 the same in effect was an application for setting aside the sale on deposit of the sale amount in terms of Order 21 Rule 89 C.P.C. specially when the second application filed on the same day for setting aside the sale was clothed in the spirit of Order 21 Rule 90 C.P.C. It has to be noted that in their first application dated 18.7.2005 (Annexure „A‟ to the counter affidavit) filed in the execution case pending for confirmation of sale the judgment debtors had made the following averments: ^^c btykl lc tt izFke eksdke e/kqcuh euh btjk; ds'k uEcj 2@2009 esll guqeku cDl xksM+h 'kadj oxSjg &&&& fMdzhnkj cuke lqcks/k flag oxSjg &&&&&&& enhmu ttesUV MsVj dh vksj ls fuEufyf[kr vkosnu gS %& 1- ;g fd mijksDr btjk; esa fnukad 20-6-2005 dks tk;nkn enhduku rFkk fMdzhnkj }kjk fuyke gqvk rFkk fMdzhnkj }kjk gh fuyke [kjhn fd;k x;kA 2- ;g fd enhmu lsYl izksDyseslu ds eqrkfcd dqy jkf'k ;k vU; tks jkf"k ns; gks vfoyEc U;k;ky; esa tek djus ds fy, rS;kj gSA 3- ;g fd enhmu ml vkosnu ds lkFk pkyku layXu dj jgs gSA vr% Jheku ls izkFkZuk gS fd dk;kZy; dks vkns'k fn;k tk; fd tek dh tkuh okyh dqy jkf'k pkyku esa Hkj dj mls tkjh djsa ftlls enhmu dqy jkf'k cuke oks cgd fMdzhnkj fuyke [kjhnkj tek dj ldsA** 7 From the aforesaid averments, even in absence of a specific prayer for setting aside, it has to be held that the same was filed for deposit of the sale amount in terms of Order 21 Rule 89 C.P.C. At the same time it has to be kept in mind that on 18.7.2005 after filing of the aforesaid application in Execution Case No. 2/2002, the defendants-judgment debtors had filed a separate application though by labeling it under Order 21 Rule 89 read with section 151 C.P.C., but there was an specific prayer for setting aside the sale dated 20.6.2005 on the ground of fraud/ no notice etc. which had all the attributes of being an application under Order 21 Rule 90 C.P.C. as would be evident from the contents thereof which is Annexure „B‟ to the counter affidavit and reads as follows: “1. That the O.P. 1st party filed Money Suit No. 5/98 against the petitioners and others for the realization of Rs. 2,71,036/- detailed in Schedule I and II of the plaint of Money Suit No. 5/98. 2. That the petitioners filed W.S. and contested the suit. 3. That the learned Sub Judge IV, Madhubani decreed the suit vide judgment and decree dated 19.12.2001 8 and dated 2.1.2002 respectively. The learned Sub Judge IV, Madhubani has observed that the suit of the plaintiff is decreed on contest with cost. The pleader fee Rs. 64/- and pleader clerk‟s fee Rs. 10/- only. 4. That the petitioners filed 1st Appeal No. 67/2002 in the Hon‟ble High Court Patna against the said judgment and decree passed by Sub Judge, Madhubani in Money Suit No. 5/98 and the said appeal is pending. 5. That the O.P. 1st party filed Money Execution Case No. 2/2002 for realization of the decretal amount Rs. 2,71,036/- and the amount of case Rs. 9714.50 total Rs. 220750.50 paise on the basis of the aforesaid judgment and decree. 6. That the recently the petitioners came to know that the O.P./ 1st party has filed money Execution case on the basis of the said decree of Money Suit No. 5/98 and auction purchased the land of the petitioners. 7. That the petitioners subsequently enquired into the matter and came to know about the fraudulent character of O.P. 1st party. 8. That the petitioner came to know that Money Execution Case No. 2/2002 was filed in the court of Sub Judge IV, Madhubani which was transferred from the said court and came into the court of Sub Judge I, Madhubani. 9. That the petitioners and other judgment debtors were not noticed in 9 the said Money Execution 2/2002. 10. That Baby Kumari wife of Sri Shailendra Singh is judgment debtor no.4 in Money Execution Case No. 2/2002 who died more than one and half years ago leaving behind a son, a daughter and her husband who have been made O.Ps. in her place. 11. That the O.P. 1st party had not filed any petition relating to death of Baby Kumari judgment debtor and as such the Money Execution proceeded against dead person and as such the entire proceedings the execution case is illegal and nullity. 12. That the O.P. 1st party the decree holder any how auction purchased the land of the petitioners in auction sale on 20.6.2005 for Rs. 1,25,000/-. 13. That the O.P. 1st party illegally auction purchased the land of the petitioners. 14. That the petitioners are ready to deposit the amount specified to proclamation of sale or the entire decretal amount or the amount ordered by the court through challan. 15. That the petitioners have filed the civil challan, in Money Execution Case No. 2/2002 for the deposits of the amount as per order of the court. 16. That in the above facts and circumstances, it is essential in the interest of justice to set aside the auction sale held on 20.6.2005 in Money Execution Case No. 2/2002.” (underlining for emphasis) 10 Paragraphs No. 7 to 13 of the aforesaid application and the prayer for setting aside the same would leave nothing for speculation that the subsequent application filed by the defendants- judgment debtors was one actually under Order 21 Rule 90 C.P.C. which reads as follows: “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 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 11 defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.” This Court would, however, fail in its duty if it does not take into account that in paragraphs no. 14 and 15 the defendants- judgment debtors had given reference of their first application and their preparedness to deposit the amount under sale but then strictly speaking the second application (Annexure „B‟) was actually complying the provisions of Order 21 Rule 90 C.P.C., a fact which also gets demonstrated and supported by institution of a separate case, Misc. Case No. 13/2005, for setting aside the sale. In fact the Legislature while laying down two separate provisions for setting aside the same sale under order Rule 89 and 90 of Order 21 C.P.C. has made a clear distinction in their respective scope and inasmuch as sale under Rule 89 can be set aside only on deposit of sale amount, there is no similar requirement of depositing any amount for getting sale set aside on the ground of its being vitiated by fraud or irregularity. Thus, in the light of the aforementioned facts of there being two 12 separate applications, one as contained in Annexure „A‟ purportedly being one under Order 21 Rule 89 C.P.C. and another one, Annexure „B‟, fulfilling the test of an application under Order 21 Rule 90 C.P.C., the approach of the court below in proceeding with the first application under Order 21 Rule 89 C.P.C. by directing the office to assess the amount for its being deposited by the petitioners is itself in teeth of the mandate of legislature under Order 21 Rule 89(2) C.P.C. would make the civil revision application maintainable. Once this Court has held that the second application filed by the defendants- judgment debtors, as contained in Annexure „B‟, giving rise to Misc. Case No. 13/2005 was an application under Order 21 Rule 90 C.P.C., there will be no difficulty in holding that the impugned order allowing the defendants- judgment debtors to press their application, also dated 18.7.2005, as contained in Annexure „A‟, was itself impermissible in view of the provisions made in Order 21 Rule 89 C.P.C. which for the sake of clarity is also extracted hereinbelow: “ 89. Application to set aside sale on deposit.-(1) Where immovable property has been sold in execution 13 of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five per cent, of the purchase money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under Rule 90 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. (3) Nothing in this rule shall relieve the judgment- debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.” (underlining for emphasis) This aspect of the matter as with regard to the scope of Order 21 Rule 89(2) C.P.C. is no longer resintegra and stands settled by the Apex Court in the case of Shiv 14 Prasad vs. Durga Prasad, reported in AIR 1975 S.C. 957, wherein it was held: “An application under R. 89 validly made on the date of its presentation cannot be allowed to be prosecuted until the subsequent application filed under R.90 is withdrawn. But it cannot be allowed to be made or be deemed to have been made unless the prior application filed under R.90 is withdrawn. The words used in the sub-rule are “make or prosecute”. If it were to be held that the applicant is not entitled merely to prosecute his application under R. 89 unless he withdraws his application under R.90, then the work „make‟ would become redundant. In order to bring about the true intention of the Legislature effect must be given to both the words. If a person has first applied under R.90 to set aside the sale, then, unless he withdraws his application, he is not entitled to make and prosecute an application under R.90. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a person has filed an application under R. 89 first and thereafter another application under R.90, he will not be allowed to prosecute the former unless he withdrew the latter.” 15 There can be no two views that Annexure „A‟ dated 18.7.2005 was filed at an earlier point of time and was followed by an application as contained in Annexure „B‟ and therefore, the court below ought to have not proceeded in terms of Order 21 Rule 89 C.P.C. till the defendants-judgment debtors had withdrawn their application for setting aside the sale and in any view of the matter, could not have allowed the judgment debtors to take advantage of their own self imposed failure to deposit the amount under sale. It has to be kept in mind that in the application filed on the same day, as contained in Annexure „B‟, the amount of sale was clearly known to them, inasmuch as in its paragraph no.12 they had taken a plea to the effect “that the O.P. 1st set/ decree holder anyhow auction purchased the land of the petitioners in auction sale on 20.6.2005 for Rs. 4,25,000/-.” As this application was also filed on the same day i.e. 18.7.2005 it cannot be said that the judgment debtors were not aware of either the sale amount or the amount which they were liable to pay to the decree holder, being the amount specified in the proclamation 16 for sale. The defendants-judgment debtors having contested the money suit were all along aware that the money suit was filed for realization of Rs. 2,71,036/- and the sale amount was Rs. 4,25,000/- and therefore, filing of an application with blank Challan in stead of depositing 5% of the sale amount and the balance amount payable to the decree holder as specified in the proclamation for sale being well known to them must be held an act to simply defeat the provision of Order 21 Rule 89 C.P.C. which mandates filing an application for setting aside the sale only on depositing of the amount. The law and the provisions made under Order 21 Rule 89 C.P.C., therefore, does not conceive of a situation that there would be an application first and the amount could be deposited after filing of that application. It is this aspect of the matter which has been settled by the Apex Court in the case of P.K.Unni (supra), where the Court after considering the provisions of Order 21 Rule 89 as also Rule 92 C.P.C. thereof had held the deposit of the amount specified in Order 21 Rule 89 C.P.C. to be condition precedent to an application to set aside the sale. In that 17 context the Apex Court had held as follows: “6. Rule 89 postulates an application on deposit. It says “may apply to have the sale set aside on his depositing in Court”. These words show that deposit is a condition precedent to the making of an application to set aside a sale. That condition must be satisfied within the period prescribed by sub-rule (2) of Rule 92, which undoubtedly is 30 days. Parliament refused to alter that provision even when a part of the sub-rule was substituted.” The submission of Mr. Dwivedi that it is the duty of the court to fill up the Challan and the amount in terms of Rule 613 of the Civil Court Rules and that the defendants- judgment debtors had only invoked the provisions of such Rule 613 of the Civil Court Rules seems to be wholly misplaced. Part X of the Account Rules (Judicial) containing general Rules 603 to 610 only lays down the procedure for receipt and payment of money and for keeping accounts to be observed by the Officer exercising judicial power and dealing with the money in that capacity. Part II of Chapter 1 under the heading receipt of money clearly provides that: “Payment of sums falling under 18 heads (a) to (e), other items of (f) and of head (g) of rule 607 cannot be accepted either in Court or at the Treasury unless the money be tendered with a chalan in quadruplicate signed by the Chief Ministerial Officer of the Court, under whose decree or order the money is tendered, and also by the Accountant of the Court or group of Courts.” It is this provision of Rule 611 of the Civil Court Rules which is further carried in Rule 613 of the Civil Court Rules heavily relied by Mr. Dwivedi. Rule 613 of the Civil Court Rules in fact reads as follows: “613. The person desirous of paying in the money having filled up four forms of chalan, shall present them to the Chief Ministerial Officer of the Court mentioned in rule 611. The latter shall then ascertain that the amount tendered is correct and is due from the person on whose account it is tendered to the person to whom it is stated to be payable and after correcting the forms of chalan, if necessary, shall sign it and pass the forms on to the Accountant of the Court or set of Courts who having made the necessary entries in Part II shall give a serial number to them. The chalans shall then be laid before the Judge-in-charge, and 19 he shall, if in order, sign them. One chalan shall be retained by the Accountant and the other three shall be returned to the party tendering the money, and shall be his authority to pay the same into the Court, or into the Treasury. The copy left with the Accountant will be kept in a guard file and will be preserved for one year.” From a conjoint reading of Rules 607, 611 and 613 of the Civil Court Rules it would thus be clear that the person requiring to pay the amount, in this case that the defendants-judgment