Afaya Devi etc. vs Ziaudin etc.

Avadh Behari

(1) In an auction sale in execution of decree of Respondent 1 against respondent! 2, Mangat Ram lalwar and Ainar Math''s Jugnest bid was accepted on i0.ll.71. Auction Purchasers made due payments in time. On 3.2.74. Mangat Ram died and his widow made an application for substitution. One Om Parkasn, a tenant of the property opposed me application contending teat Manual Ram had not acquired any tight and auction sale should be set aside. Objection was allowed and would appealed to High Court.] Alter giving above facts in detail, para 7 onwards, judgment is :-

(2) Three questions arise for consideration in this appeal. Firstly, Mr. Khanna says that no appeal lies against the order of the executing court refusing the application of Maya Devi which was made u/s 151, Code of C.P.C. In my opinion the appeal is competent. The result of the order of the executing court is that the sale in favor of Talwar and Chopra has been set aside. An order setting aside auction sale is a final order and falls within the definition of decree u/s 2(2) read with section 47, Code of Civil Procedure.

(3) In Ramchandra Spg. and Wvg. Mills Vs. Bijli Cotton Mills and Others, , the Supreme Court said :

" An execution proceeding no doubt is not a suit but the combined effect of S. 2(2) and S. 47 is that an order passed in execution proceeding is tantamount to a decree in so far as regards the Court passing it if it conclusively determines the question arising between the parties to the suit (which expression now includes an auction purchaser) and relating to the execution of the decree".

(4) It is, Therefore, now established that the auction purchaser is a party in view of the amendment of Section 47 made in 1960. It is a final order. In so far as the auction purchaser is concerned, the orders setting aside the sale determines finally the rights and liabilities of the parties. An order setting aside the sale is made appealable by reason of section 47 itself, since is decision of the court under that section amounts to a decree. 1, Therefore, hold that the appeal is competent.

(5) the second question is-and this is the main point to me appeal-whether Maya Devi, the legal representative of the deceased, lalwar, has a right to be brought on record of the execution case. The bid was made by Talwar and Chopra Jointly, lalwar has died. Chopra is alive, the court has set aside me sale on the ground or lalwar''s death. What about the rights of Chopra ? Nothing has been said about his rights.

(6) La Ram Chand Spinning and weaving Mills Case (supra), me Court said :

"WHEN an auction purchaser is declared to be the highest binder and me auction is declared to nave been concluded certain rights accrue to mm and he becomes entitled to conveyance of the property through the court on his paying me balance unless me sale is not confirmed by the Court''''.

(7) Now Talwar and Chopra deposited the full amount of Rs. 62,000.00 within the time prescribed under Rules 64 and &5 of Order 21, Code of Civil Procedure. No objections were filed by the judgment debtor within thirty days. Objections were hired by Om Perkash but he has no locus-standi to make any objection as 1 will show presently.

(8) Now rights having accrued to Talwal and his co-bidder Chopra, it cannot be said that on Talwar''s death the entire sale proceeding have come to an and the proposal is revoked u/s 6 of the Contract Act.

(9) Mr. Khanna has argued that until a sale is confirmed by the court the highest bidder does not obtain any enforceable right to the property sold at the auction. Rights, he says, flow only from the order of confirmation of the sale. It is then argued that the bid is at best a proposal. If the proposer dies the proposal is revoked u/s 5 of the Contract Act. Only course then left open to the court is to order a fresh auction, it is said. For this submission, he relies on The Rajah of Bobbili v. Akkella Suryanarayana, 51 IndCas 805 and A. Subbaraya Mudaliar Vs. K. Sundararajan, (Joint Receiver) and Others, . In my opinion these rulings have no application to this case.

(10) A bidder can withdraw his bid at any time before the fall of the hammer. This is the English rule. It is followed in India (see Agra Bank V. Hamlin (1890) 14 Mad. 235

(11) The Rajah of Bobbin''s case (supra) deals with the death of a bidder during auction proceedings. In the other case of Subbaray & Mudaliar (supra) the court held that a court sale is not complete till the highest bid is accepted by the Court.

(12) A person declared to be the purchaser under R.84 of 0.21 has even before the confirmation of sale in his favor sufficient interest in the property to prevent a forfeiture or preserve the title from destruction, (Ven- katachellamayya V. Neelakanta, Air 1919 Mad. 1014. As against the purchaser the sale is complete as soon as the property is knocked down to him and he can not withdraw his bid thereafter. As was said in the Venkatachellamayya''s case (supra):

''''THE position of a person between the date of sale and the date of confirmation is not that of a person who has only an agreement to sell in his favor. S. 65 of the Code vests title in him from the date when the property is sold and not from the time the sale becomes absolute."

(13) It is true that the sale has to be confirmed by the Court. The auction purchasers will get a conveyance in their favor only after the sale has been confirmed by the Court. But even before that certain right* have accrued to them, as the Supreme Court has said.

(14) The distinguishing feature of this case is that the auction purchasers have deposited the entire amount in court. The sale has concluded. No objections have been filed to the sale under Rule 90 of Order 21, Code of Civil Procedure. It has to be remembered that Talwar died more than two years after the sale. Talwar has died but Chopra is alive. By reasons of Talwar''s death rights of Chopra'' cannot be dissipated in the auction sale. It seems to me that Maya Devi is entitled to be brought on record.

(15) Om Perkash objector has raised another question before the executing court. He says that it is an enemy property and vests in the Custodian of Enemy property. P.S. Safeer J. by order dated 13th March, 1972 has directed the executing court to go into this question and find out whether it is an enemy property and if so what is the effect. The executing court will certainly go into that question but Maya Devi and Chopra are entitled to present their case before the executing court since it is the sale made in their favor which is now being sought to be impugned.

(16) The third question is whether Om Perkash objector or for that matter other tenants of this property have a right to raise objections. In my opinion tenants have no locus-standi to object to the application of Maya Devi for being brought on the record. They cannot file any objection to the sale under Rule 90 of 0.21 CPC . On this question they cannot be heard. They are busy-bodies. The Custodian of Enemy Property has appeared on the scene. He is claiming the property as his. The Court will decide this question.

(17) Mr. Khanna on behalf of Om Perkash concedes (hat under Rule 90 tenants have no right but he says that the tenants have been allowed to participate in the proceedings by the order of P.S. Safeer J. At this stage I am not concerned with the question whether it is an enemy property or not. That was the question before P.S. Safeer J. 1, Therefore, need not say anything on that aspect of the case.

(18) In my opinion the question raised between the decree-holder and the auction purchasers is a question between the parties to the suit u/s 47 Code of Civil Procedure. It relates to the execution, discharge and satisfaction of the decree.