IN THE HIGHCOURT OF CHHATTISGARH AT BILASPUR M.».A.No. '2-^- of 2008 MISC. CFVIL APPEAL U/0 ¥3RULE Kil OF THE CODE OF CIVIL PROCEDURE Aiipellant : ^.(Auction Purchaser) $,2,1.. s..^- Wi^ t.,-.: ^'-- ,,rtaStSS "! . ...-'f' "^"....-•ft-o^ ..;A.*'"' Versus Respondents : (Judgnient Debtor) ^ V- 2. Decree Holder : '^ /Madan Soni, S/o Kanhaiyalal Soni, Aged about 40 years, R/o Gandai 65 Pandariya, Tehsil - Chuikhadan, Dist: Rajnandgaon-(C.G.) Vinod Kumar, S/o Kachrulal Agarwal, Aged about 40 Years, Kachrulal S/o Moharlal Agarwal, Aged about 67 years, Both R/o Gandai 85 Pandariya, Tehsil - Chuikhadan, Distt. : Rajnandgaon-(C.G.) Santra Bai, Wd/o Samaylal Agarwal, Aged about 32 years, Acting Through Special Attorney Brij Mohan Agarwal, S/o Not Known R/o Baldev Bagh, Rajnandgaon, Distt: Rajnandgaon-(C.G.) 1 HIGH COURT OF CHHATTJSGARH AT BiLASPUR tench: Hon'bte Shri Jo^ice Prashant Kumar Mishra i.A. No. 22 of 2008 Versus JUDG T Postfor^ o-11-2010. Sd/- PrashantKumarMishra Judge ^ HSGH COURT W CHHATriSGARH AT BILASPUR [; HON'BLE SHRS JUSTJCE PRASHANT KUMAR MSSHRA i.A. ,22^ APPELLA.NT iSPONDENTS Versus Madan Soni \finod Kumar and others Shri K.A. Ansari, Senior Advocate with Shri R.L. Bajpayee, counsei for ths appeiiant Miss Shamiila Singhai, counsel for respondents No, 1 & 2. None for respondent No.3. MSSC. CSVSL APPEAL UNDER ORDER 43 RULE 1ijl OF THE CODE OFCiVILPROCEDURE JUDG T (AO .11.2010$ This appeal under Order 43 Ruie 1Q) of the Code of Civil Procedure fherenafter refwred to 'fte Code? has been preferred by the auction purchaser to caii in quesfen the order dated 22/01/2008 passed by the Executing Court aiiowing the judgment-debtor appiiration for setting aside sate dated WW12W7 and reieasing suiqsct property from attachment, (2) A dscree for recovery of an amount of Rs.1,65,168/- was passed by ttie Firet AddHionai District Judge, Rajnandgaon. The execution case was iater on transferred to the Court of Additionat District Judg®,Khairagarh, which was registered as Execution Case No. 04/03. The respondent No.3 in ttiis appeai is the decree hoider. (3) On account of faiiure of tt-ie judgment-debtor to deposft the decreetai arnount an appiicafen for atiachment of the property of respondente No. 1 & 2 was fiied by the dec-ree hoider. On the direction of the Execuling Court the respondent No.3?'(^ree holdw submitted iist of immovabSe properties on 19,?06?20S^. Notice regarding attachment and auction of the properties were pastsd in the house of the judgment-debtor. The auciion was fixed on 26!05!2y , however the auction saie finaily took pface on W-09-2W7 under the ordere of the Executing Court passed on 22/06/2007. Out of the three Khasra numbers atiached by the Executing Court iand bearing Khasra No. 817 area 3.455 hectares of viiiage Pandariya, Patwari C-irci®No. 8, Ri Circie Gandai was auctioned on <K?'Q9/2007. Th& bid waa knocked down in favour of the appeliant for an amount of Rs. S,25,000/- the appeliant d^iosited % arnount on W/09/2007 Jteetf. (4) The judgment-debtor initially moved an a iication under Order 21 Rute 89 of Code %rtiich was dismissed for want of prosecution, Subsequentiy appiicaCon under Order 21 Rute 64 of C.P.C. was moved on 21/11/2007 and another appiication under Order 21 Ruie 89 <rf the Code was moved on 22/12/2e07. These appiications have been aiiowed by th®Executing Court by the impugned onier. (5) Shri K.A. Ansari, Leamed Senior counsei for the appeiiant has argued that the Executing Court committed serious error of law and jurisdiction by aiiowing the application in spite of fact that the pre-requirement of deposit of amount as provjded under Order 21 Rute ^ of the Code has not been satisfied and the applteation undsr Order 21 Ruls 64 was not maintainabie, The apptications were ^eferred after comptetion of the auction saie wtilch took piace in ttie village. He would {urthw submit that the amount of 5% was deposited after 60 da^ and was thus highiy belated. He has piaced reilance on the judgment of Hon'bie Supreme Court in the case of Tnbhovandas Piirshottamdas Thakkar Vs. RaSfat MoWal Patel and Qihsrs reported in AIR 19S3 SC 372 and Dadi Jagannadhwii vs. Jamnwlu Ramuiu and others reported sn AIR 20M SC 2639. (6) Per contra, Mtes Sharmita Singhai, isarned counse! for the judgment- debtQrefrespondente No.1 & 2 woytd argue that the iearned Execu'Kng Court , has not committed any error by ailomng the application because for recovery ,&• ^,. l\' '^ ^ of amount of Rs.1,65,168/- eight acr of land has been soid for Rs.8,25,10}/-. She has placed reiiance on the foitowing judgment of the Supreme Court:- "M Nooht^an . Bank of Travancore and another" (2W8) 11 SCC . 161 (Pam 5&S) *"CAaffamane Hucftfta Gawte vs. M.R. TlrumaSa and another" (2004) 1 SCC 4S3 (Para 9} "Ctesh Bandhu Gupta vs. N.L Anand & Rajindw Singh" (1994)1 SCC 131 (Para 6) *^asavan?appa vs. Gangadhsr Narayan Dhamadsar awS anaUier" MR 1987 SC 53 (Para 3} *"Dadf Jagannacffissn vs. JamrotB'u Rarmslu and others" WR 2001 SC 2699 fPara 16,17 & 18) * "eatetofeftnan vs. MalsyaivS Kaiar" AIR 2006 SC 14S8 * "Amfea&' Nsussayya vs. M. Subts Rao and anather" MR 1990 SC 119 * "Kaiwherta Laksftn»narayana vs. Mattapartht Shyams»a & Ora." A!R 2008 SC 2069 (Para 10,12,14 & 16}" (7) From the order-sheet of the Executing Court filed as Annexure A/13 ii would appear that the decree hoider deposited RsS.QWI- on WQti'20Q7, Rs.2,50}/- each on 13/02^007,05/040007 and 07/Q4/2Q07, thus e decres was parfiy satisfied. The decree was for recovery of Rs.1,64,1S8,'- however in spfte of some deposit being made the saie proctamaiion continued to mention the recoverabte amount as Rs.1,64,16Sl'-. it is aiso to be seen from the order-sheet dated 22/12/2007 that even before the saie was confimied, ttie judgment-debtor deposited ihe entire decreetel amount on 21 /1 2/2007. it is aiso recorded therain that the decrse holder is to receive only Rs.1,400/- from the judgment-debtor as cost of ihe suit. The execution Court directed the judgment-debtor to deposit 5% amount as required under Order 21 ruie 89 of the Code by 09/01/2008 and the order-sheet of the sasd date records that the said arnount w-as deposfted by the judgment-debtor. (8) in the matter of M. Hoohiikan Vs. Bank of Travancore and another reoorted in (2W§f11 SCC 161 (swraf the Hon'bte Supra-^e Court set-aside ^: 1 '--3 '^t.- <s:-,-.... -")- the auction saie when the judgment-debtor satisfied the decree as per ihe interim order passed by the Supreme Court. (9) Whiie considering e quastion as to whers the period of iimitation for nraking deposit in an apptication to set-aside sais of immovabie property under Order 21 Rule 89 of fte Code wouid be 30 days or 60 days, the Hon'bie Suprems Court, in the matter of Dadi Jagannadham vs. Jammutu Ranwlu and athers repofted in AIR 2G01 SC 2S99 fsypraj h-as heid that Ordsr 21 Ruie 89 of the Code does not prewribe any period within which ttie appllcation is to be made or deposit is to be made. (10) in the matter of Desft Bwidhu Qupta vs. N.L Anand & Raffnder Sfngh reported in (1994) 1 SCC 131, the Hon'ble Supreme Court has held ttius in paragraph 17 of the report ;- "17. Under Section 47 all guesfions refeffng to exewffon, dischafge or saffsfacSon af ft®deciee shoirid ibe (tetemwned &y the Executing Court ahme. The pre-safe 'fVegalstes comnvtted jn the execuSon ase amwwibte to ff»remedy undsr Sectton 47. Post-sate iltegalities or fffegufeffffes causlng substanSat injwy to theju^nwnt-^Mitor are covered under Onfer 2^ Ryte 30. Sisb- rufe (1) ff-sfeof covers ttw fefcf of mateiia! irregiitariSes w fraw! m pfibticity or cofxiwSng e safe. Sub-mte (2) enjoins pmof thetsof and tf»<syrt shoutd Snd ffiat by feasai ^wieaf fffe appScant sustasned substantia! injury. The totai absence of drewffw up of the pfoclamaSw) of sate and s'Wement of its tenn byjwSiciai appScaGa'i of mirsS fendeis fe saie a nullity being vad. !t is cowered by Sectton 47. The non-a.op/fcaffon of mind whettwr sate of a part of fhe pmpefty woirid satisfy ttie dscree debi is a materia! inegulanty stoing si^stanSal JFyury to the app^lant attiacSng Orefer 2f Rute 90. /n » ercase fte sate fe \ liabte to be set-asste. StistrueffiatthweiscSsSncSonbetwewj i ffiere weguSarity and materiaf irfBgulafiSes and ffw sais is not \ iiabte to be set as^ OT! pmof of mefe In'egularity. It miist be matwiat ifreguianty and the court must be saffsfied (hat on v account ffiefeof substanSat iriiury was stistsned bv the -5- appellant The sate of 550 sy. yanfe for recovsfy of a paltry sum ofRs. 7,780.33, wiffvxd selling a portfon ftereof, caused substanffai mjuiy fe? (te appetlant. " (11) in ths matter of Ambati Narasayya vs. M. Subba Rao and another reported in 19W Sup^. (2) SCC S93 (supfa), the Hon'bie Supreme Court h-as heid that it is the duiy rast upon the Court under Order 21 Rute 64 of the Code to se!i oniy such properiy or a portlon thereof as may be necessary to safefy She decree. H: is a mandate of She iegislature which cannot be ignored. !n She sa'd c-ase, fw execution of a decree for Rs.2,OW/- the lands vaiued at Rs.17,{XK)/- was sold in course of exK;ution. In fte said context Hon'bte Supreme Court heid that without the Courte examining whether a portion ofthe propeity could be soid, the saie hsid was not in corrformjty with fte requirement of Order 21 Rule 64 of the Code and it was heid to be iiiegai and without jurisdiction. The Supreme Court set-aside the saie and the judgment-debtore were dira;ted to be put in possession of the Sand and to refund the sate amount to fte auction-purchaser. (12) In the matter of Manga! PFasast fffead) by Lrs. and another Vs. fWsfina Kumar Maheshwari and othars reported m 1W2 Suppi. 3 SCC 31 the Hon'bte Supreme Court again set-aside auctiwi saie conciuded for Rs,1,( ,(X}Q/- for recovery of the decreetal amount of Rs.29,000/- on findir^ ttiat the amount achleved in auction is excessive. (13) Learned counsei for the appetiant has vehemently argued that in any rase requirement of d^iosst of 5% amount is mandatoriiy to be made within 60 days wliich has not been done in the present case, therefore, ttie appiicaCon under Ofder 21 Ruie 89 couid not have been entertained and ihe Impugned order desen/es to be set-aside. To deal with this argument it is profitabie to once again refer to judgment of Supreme Court in the matter of ChaHamane Hucftha Gowtfe vs. M.R. Tirumala and anoOier reported in \2004 (1) SCC 453, wherein it is mentioned that mere non-mentiQning or -6- vffong mentioning of a provision in the pleadmgs is not a ground for rejecting the appiicaBon. In the matter of Desh Bandhii Supte (supra), Hon'bie Supreme Court has heid that the erfent of property to be so!d in execution shouid be such as to satisty She dewee and the ExecuGng Court must appiy its mind in this respect and non-apptication of mind is a maieria! irregutariSy which '/itiates the saie. (14) !n the present case though the appiication was titted as an applicaCon under Order 21 Ruie 89 of the Code but it appears th®Court has exercised the power under Order 21 Ruie 90 of ihe Code for setting-aside the sate on the ground of materiai irreguiarity and non-appiication of mind on the ground that the propwty soid in executfon is excessive in comparison to the decr&eta! amount, ttierefore, the same being a materiai irreguiarity in conducting ttie auction, the saie deserves to be set-aside. (15) in the opinion of this Court, in view of the law laid-down by the Supreme Coyrt in the ease of Ainbati Narasayya (supra), Mangal Prasad (siipra) and Dssft Bandhu (supra) the execufiRg Court was fuiiy justified and h-as act&d strictiy in accordance wttti law white setttng aside the auction sale because for recovery of ihe decreetei amount of Rs.1,65,168f'- esght acres of iands worth Rs.8,25,100/- has been soid in auctlon wthout appiicatiQn of mmd regarding extent of property required to be soM. Thus, non-deposit of 5% amount as required under Order 21 Rute S8 (1)<a) of ttie Code has not rendered the application as not rnaintainaye because In effect the saie has been set-aside under Qfder 21 Rule 90 of the Code on e ground of materiai irr^uiarity in conducting auction. (16) !n the resuft, the instent appea! faiis and is hereby dismissed. fto order as to coste. °~ ' Sd/- Prashant Kumar Mishra Judge V-