Bundoo vs Vth Addl. District Judge,Moradabad & Ors.

Rakesh Tiwari, J.—Heard Counsel for the parties and perused the record.

The petitioner filed suit No. 106 of 1976 against Munna Singh the predecessorininterest of respondent Nos. 3 to 8 (hereinafter referred to as the contesting respondents) for recovery of Rs. 6,830. The suit was decreed for the aforesaid amount in favour of the petitioner. The petitioner decreeholder filed execution case No. 1 of 1978 (Bundoo v. Munna Singh) and in execution proceedings the agricultural plots situated in village Rasoolpur was attached and auctioned which was purchased by the decreeholder the petitioner for Rs. 15,000 on 491978. Munna Singh died leaving behind the contesting respondents as his heirs and legal representatives. The contesting respondents moved an application 17C for permission to deposit the entire decretal amount which was rejected on 4101980. Thereafter the contesting respondents also moved an application again for depositing the amount. Respondent No. 2 on 4101980 passed order to register the application to take steps within 7 days. On the same day another application by the judgmentdebtor was moved for stay of the sale. The Court passed the order the following order:

�Let her deposit the entire amount at her risk within 5 days.�

The contesting respondents deposited Rs. 10,000 on 10101980. The petitioner filed an application 35C stating that neither the contesting respondents sought permission of the Court for depositing the amount within the prescribed time nor the contesting respondents had been permitted by the Court to participate in auction. The deposit made by her was absolutely at her own risk which was deposited after the expiry of the prescribed period of 60 days from the date of auction, hence the respondents were not entitled to get benefit of proviso contained in Order XXI Rule 89 CPC. The contesting respondents were not entitled to get the benefit of Order XXI Rule 89 C.P.C.

It is submitted by the Counsel for the petitioner that it is now wellsettled that the auction sale cannot be set aside if there was a failure to deposit the amount within the stipulated period of 60 days. This argument is not acceptable as it is wellsettled that the deposit must be made within 60 days from the date of auction sale. It is next submitted that Munna Singh the predecessorininterest of the contesting respondents filed an insolvency proceeding and it is alleged that in that insolvency proceeding the confirmation of the sale was stayed by the Insolvency Court on 2381978. Munna Singh died on 411979. After the death of Munna Singh the insolvency proceeding and the stay order granted in that insolvency proceeding abated after the expiry of the period of 90 days. In the insolvency proceeding no application for substitution was moved by the contesting respondents for substituting their names. Hence, the stay order came to an end after the death of Munna Singh on 411979 or in any case after 150 days. The amount was deposited much after the abatement of insolvency proceeding on 10101980. Insolvency proceeding was dismissed in default on 1691981. It is submitted that the auction had taken place on 491979 while the amount was deposited at their risk after 2 years on 10101980. Hence, respondent Nos. 1 and 2 acted illegally in setting aside the auction sale on the erroneous view of law that the period during which the confirmation of stay was stayed by the Insolvency Court, should be deducted from the period taking in deposit of money.

From the record it appears that the plaintiff decreeholder was auction purchaser and the amount involved in the suit was only Rs. 5,000 for which suit was decreed. The plaintiff cannot purchase the property in auction purchase except with the permission of the Court. The plaintiff in the instant case, had purchased the property worth Rs. 15,000 which could have been satisfied only from a part of auction property. There is no explanation why the property worth Rs. 15,000 was auctioned when the amount involved in execution was only Rs. 5,000.

Counsel for the petitioner has relied upon the case of P.K. Unni v. Nirmala Industries & Ors., AIR 1990 Supreme Court 933, in which it has been held that there is no inconsistency between the two sets of provisions prescribing different periods of limitation. Such inconsistency can arise only if obedience of one provision will result in disobedience of the other. In para 12 of the aforesaid judgment it has been held that:

�The legislative intent, as seen from the above statement, was indeed to extend the period prescribed for making an application and not for any other purpose. That is the reason why Article 127 was amended enlarging the period for making an application from 30 days to 60 days. That period has no bearing on the time allowed for making a deposit in respect of which the period is prescribed, not under Article 127, but under Rule 92(2) of Order XXI, and this period has always been, and remains to be, 30 days. We see no repugnance or inconsistency or lack of clarity in these two sets of provisions.�

The contention of the Counsel for the petitioner that respondent Nos. 1 and 2 acted illegally in deducting the period of stay granted by the Insolvency Court in calculating the period under Order XXI Rule 89 C.P.C. has force. However, since plaintiff had no right to purchase the land without permission of Court and as he purchased property worth Rs. 15,000 for a sum of Rs. 5,000 only, the sale was bad and has to be set aside. The auction money was also not deposited within time, hence, there was no compliance of Order XXI Rules 89 and 92 C.P.C. Such auction cannot be sustained. The impugned orders dated 10284 and 11182 are quashed.

For the reasons stated above, the petition is allowed. No order as to cost.