Bilas Chand Jain vs The State Bank of India and Others

J.V. Gupta, J.—The State Bank of India had obtained a money decree dated 22.4.1978 for the recovery of Rs. 509028.87 and future interest pendent lite against M/s N. N. Industries and others. The property in dispute was got attached under order 38 Rule 5 C. P. C. on 16.5.1976. The said attached property is a house owned by judgment-debtor Bilas Chand Jain at Abohar. Since the judgment-debtor had property within the jurisdiction of Fazilka Court, the same was transferred from Meerut to this Court. Ultimately, the said house was auction on 27.2.1982 and was purchased by Raj Kumar - the auction purchaser, for a sum of Rs. 2,20,000/-. The judgment-debtor filed objections to the said sale alleging it to be illegal, void and conducted with many irregularities and illegalities. It was alleged, inter alia, that the sale was conducted by the Bailiff who is a petty officer whereas it should have been auctioned by the Court Auctioneer or through Nazir and that too after due publication in the town as well as through the newspaper. Reply to the said objections was filed on behalf of the auction purchaser.

On the pleadings of the parties, the execution Court framed the following issues:-

Whether the auction sale dated 27.2.82 is liable to be set aside as per allegations contained in the objection petition?

Relief.

The learned Additional Senior Sub Judge came to the conclusion that there were no grounds to set aside the auction sale dated 27.2.1982 particularly in view of the provisions of Sub-rule (2) of Rule 90 Order 21 C. P. C. which provides that no sale shall be set aside on the ground of irregularity or fraud in publicizing 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. Reference was also made to sub rule (3) of Rule 90 CPC which further provides that no application to set aside the 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. According to the learned Sub Judge, the objections taken by the judgment-debtor have no force and are liable to be dismissed.

The learned Counsel for the judgment debtor Appellant submitted that admittedly the auction was conducted by the Bailiff whereas under the Rules and Orders of the High Court Vol. I, it was only the civil Nazir who was competent to conduct the sale as the property being of value of more than Rs. 5,000/-. According to the learned Counsel for the judgment-debtor, the sale conducted by the Bailiff being against the Rules and Orders of the High Court, was void and was thus liable to be set aside on this account alone. In support of this contention, he referred to Surat Singh v. Nafe Singh etc 1974 Curr. L. J. 339

It was next contended that the Court ordered Munadi to be held on 2.2.1982 by beat of drums, but no such Munadi made on that day at the spot nor there was any proclamation on 17-2-1982 as ordered by the Executing Court. Even there was no publication in the Punjab Kesri as directed in the order. Thus it was argued that the sale was void for noncompliance of the mandatory provisions. In support of this contention, reference was made to Srikakula Chinna Venkatanarayana and Ors. v. Pannapati Elias A. I. R. 1954 Mad. 1024. and Doddamane Gurupadappa v. Hugulawlli Rawanna Gowda A. I. R. 1959 Mys 38. It was also pointed out that l/4th amount of the auction money was not deposited at the spot, rather it was collected from the shop of the auction purchaser. According to the learned Counsel, the sale was also void because the provisions of Order 21 Rule 68 C. P. C. were not complied with. In support of this contention he referred to Laxminarayan v. Mt. Purnabai A. I. R. 1918 Nag 213. and Kishan Dinali v. Deorao Nathuji A. I. R. 1954 Nag 240.

On the other hand, the learned Counsel for the auction purchaser submitted that in the Court of Fazilka, it is the Bailiff alone who conducts the sale as there was no Court Auctioneer appointed by the High Court. According to the learned Counsel, that being the practice, there was nothing wrong if this auction was conducted by the Bailiff under the orders of the Executing Court. In any case, argued the learned Counsel, the judgment-debtor was present at the time of auction, but he never objected to the same and that being so he was now estopped to make this grievance by his own act and conduct. It was also argued that there is no powers under the Rules and Orders of the High Court as provided in Chapter 12-L of Vol. I, that the Bailiff could not conduct the sale if it was of the value of more than Rs. 5000/-. Thus argued the learned Counsel, in the absence of any prohibition as such the sale could not be set aside on this account particularly in view of the provisions of Sub-rule (2) of Rule 90 of Order 21 CPC It was also maintained that the sale was confirmed on 12.5.1986. Even the sale certificate was also issued under Rule 92 of Order 21 CPC on 3.6.1986; whereas the appeal in this Court was filed on 10.6.1986. Since the stay order confirming the sale has not been challenged no appeal as such was competent against the order passed on an application under Rule 90 Order 21 C.P.C According to the learned Counsel mere adequacy of price was no ground to set aside the sale. In support of this contention he referred to Uma Datt v. R. K Sardar A. I. R. 1970 Del 56. and V.V. Narayan Chetty Vs. Nenla Dhanamma and Another, . It was also argued that the auction money was deposited in the year 1982 and even the stamp worth Rs. 27,000/- was purchased for execution of the sale deed in favour of the auction purchaser and taking into consideration of these facts particularly the conduct of the judgment-debtor, he is not entitled to any relief from this Court

I have heard the learned Counsel for the parties and also gone through the relevant evidence on the record. Admittedly the sale was conducted by the Bailiff of the property attached which is admittedly of the value of more than Rs. 5,000/-. Rule 20 of Chapter 12-L of the High Court Rules and orders Vol. I provided that,-

(1) xxx xxx xxx

(ii) At the headquarters of each sub-division in a district, save as otherwise directed, the District Judge shall, with the prior approval of the High Court, appoint a Court Auctioneer to conduct sales in execution of decrees within the limits of the subdivision.

(iii) xx xx xx

Rule 24 further makes it clear which reads as under:-

(i) Where the District Judge directs that a sale be conducted by the Nazarat Staff, the proper officer to conduct the sale is-

(a) Where the sale is ordered by a Court of Small Causes- the Departmental Officer or such other officer as the Court may appoint.

(b) Where the sale is ordered by a Court other than a Court of small Causes:-

(1) The Civil Nazir, for all sales ordered by Courts located at District Headquarters and for all other sales in which the value of the property to be sold is estimated to exceed Rs. 5000/-.

(2) The Naib Nazir of the Court ordering the sale for other sales.

(ii) In every case in which the Civil Nazir is not required, under these directions or the directions of the District Judge, to conduct the sale in person, such sale may be conducted under the orders and upon the responsibility of the Civil Nazir, by the Naib Nazir deputed by him for the purpose.

(iii) When it is desirable to have the sale conducted at the place where the attached property is situate and the property is of small value, and a Nazir or Naib Nazir is not available for the duty, an execution bailiff may be deputed to conduct the sale.

(iv) A process server shall not be employed to conduct a sale without the authority in writing of the Officer in charge of the Process serving Agency concerned. Such order shall not be made unless no other officer available and the value of the property to be sold is estimated at Rs. 100 or less.

(v) The District Judge may issue instructions, consistent with these directions, for the further regulation of the conduct of sales by the Civil Nazir and his establishment.

From the said provisions, it is quite evident that where the District Judge directs that the sale be conducted by the Nazarat Staff, the Civil Nazir will be proper officer for all sales ordered by the Courts located at District Headquarters for all other sales also in which the value of the property to be sold is estimated to exceed Rs. 5,000/-. In other words, if the sales ordered by the Courts located at the District Headquarters are to take place, they will be conducted by Civil Nazir irrespective of any value of the property to be sold. Whereas the value of the property to be sold is estimated to exceed Rs. 5,000/- and the property is located beyond the headquarters, in that situation also it will be the Civil Nazir who will conduct the sale. The above said rules no where provided that the bailaiff was competent to conduct the sale if the value of the property is estimated to exceed Rs. 5,000/-. Somewhat similar matter came up for consideration before this Court in Surat Singh''s case (supra); wherein it was held chat the proviso to Rule 90 Order 21 C. P. C. was enacted so that all such objections regarding the saleability of the property etc. which can be conveniently decided before the sale is conducted, should not be re-agitated after the property is put to auction. This proviso is not intended to legalise a sale which is conducted in utter violation of the mandatory provisions of law. No rule or instructions could be shown on behalf of the auction purchaser by virtue of which the bailaiff was competent to conduct the sale of the property which was admittedly worth more than Rs. 5,000/. Thus the sale having been conducted by a person who was not at all competent to conduct the same, the sale is liable to be set aside on this account alone as the whole proceedings are vitiated being without jurisdiction. The High Court Rules and Orders reproduced above clearly provide that it is the Civil Nazir who will be the proper officer to conduct such a sale.

Apart from that, it is also evident from the record that no Munadi was made on 2.2.1982 at the spot as directed by the Executing Court nor there was any proclamation on 17.2.1982 and nor there was any publication in Punjab Kesri as ordered. There was also non-compliance of Order 21 Rule 68 C. P. C. In any case the present sale is liable to be set aside being void ab initio having been conducted by a person who was not at all competent to conduct the sale. In that situatton the inadequacy of the price, if any becomes irrelevant and was of no consequence.

At the time of motion hearing, this Court stayed the confirmation of sale vide order dated 12.6.1986 and also stayed the dispossession of the judgment-debtor. Since the sale had already been confirmed on 12.5.1986 and even the sale certificate has already been issued on 3.6.1936, it is not disputed that the judgment-debtor was never dispossessed from the property sold In these circumstances, it could not be successfully argued on behalf of the Respondent auction purchaser that the present appeal as such was not competent. The objections are filed under order 21 Rule 90 C P. C. ; whereas the same are disposed of under Rule 92, which order has been made appealable under Order 43 Rule 1(j)C. P. C.

It has been stated at the bar that the auction money deposited by the auction purchaser is still lying in the Court and was never paid to the decree-holder, therefore, he will be receiveing the said amount without any interest. In case any interest has accrued on the said amount lying deposited with the Court, auction purchaser will be entitled thereto. However, as regards the money spent on purchasing the stamp-paper for execution of the sale deed, the same will be refunded to the auction purchaser in accordance with law. Consequently, this appeal succeeds, the order under appeal is set aside and the objections to the sale are accepted with no order as to costs The parties have been directed to appear in the executing Court on 4.11.1987. The record of the case be sent back forthwith. Since execution is pending for a long time, it is directed that the execution proceedings be expedited and the property put to auction after following all the necessary formalities in accordance with law.