Joseph K, Joseph vs Central Bank of India

M.M. Pareed Pillay, J.—Revision petitioner is the second defendant (second judgment debtor) in E.P. 126 of 1981 in O.S. 150 of 1976 of the Additional Sub Court, Alleppey. He filed execution application for vacating the order of attachment of his movable properties on the ground that the only course open to the respondent-decree holder is to bring the immovable property which was already been sold for re-sale as provided under order XXI Rule 86 C.P.C. The question that arises for consideration is whether the respondent (decree-holder) is precluded from executing the decree by any means other than bringing the immovable property again to sale as he failed to deposit the amount required for the general stamp paper for the certificate under Rule 94 within the time stipulated under Rule 85. As the decree holder bid the property in auction he is entitled to set off the purchase money under Rule 72. Order XXI Rule 84 makes it incumbent upon the purchaser of the immovable property to deposit immediately 25% of the amount of the purchase money in the Court. That requirement docs not apply to a decree holder - purchaser. But he has to pay the amount required for the general stamp paper for the certificate under Rule 94. Respondent - decree holder failed to deposit the amounts required for the general stamp paper for the certificate.

Contention of the revision petitioner is that since the order of sale of the immovable property was effected and as the respondent did not deposit the amount required for the general stamp paper for the certificate to be issued by the Court he has no option but to bring the property for sale again and he is precluded from adopting any other mode of execution for the realisation of the decree debt. It is the admitted case that in execution of the decree portion of the property belonging to the first judgment debtor was sold in court auction and the respondent bid it and he failed to pay the amount required for the general stamp paper for the certificate under Rule 94. The consequence for the failure to deposit purchase money together with the amount required for the general stamp paper for the certificate to be issued by the Court is provided under Order XXI Rule 86. The above rule makes it clear that in default of payment within the period mentioned under Order XXI Rule 85, the Court at its discretion may forfeit the deposited amount after defraying the expenses of the sale. Thus the consequence of the failure to deposit the purchase money together with the amount required for the general stamp paper for the certificate under Rule 94 would make the sale a nullity. The very specific provision under Order 21 Rule 86 that the property shall be resold in the event of default sufficiently and clearly indicates that the proceedings for sale are completely wiped out. In other words, due to the action of the defaulting purchaser whether he be decree holder or a stranger the sale does not exist legally. In Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, it is held as follows:

Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the court is bound to re-sale the property (Rule 86) in the event of a default shows that the previous proceedings for the sale are completely wiped out as they did not exist in the eye of law.

The provision of Order XXI Rules 84, 85 and 86 are mandatory and upon non-compliance with these provisions there is no sale at all.

Counsel argued that as admittedly the full amount required for the general stamp paper for the certificate under Rule 94 was not deposited within the period mentioned in Rule 85 the property should have been re-sold and as the respondent-decree holder did not take any steps for re-sale he cannot resort to any other mode of execution. Though consequence will follow as provided under Rule 86 in case of failure to deposit the purchase money together with the amount required for the general stamp paper for the certificate under Rule 94 or the latter amount as the case may be depending upon the circumstances of each case it cannot be said that other modes of execution available to the decree-holder u/s 51 C.P.C. is lost for ever. Section 51 C.P.C. allows the decree holder several modes of execution of the decree. Section 51 (b) empowers the decree holder to execute the decree by attachment and sale or by sale without attachment of any property. This includes property movable or immovable Merely because attempt to the sale of immovable properties could not be pursued to its successful culmination it cannot be held that the decree holder is prevented from proceeding against. Movable properties or adopting any other mode of execution available to him Consequence contemplated under Order XXI Rule 86 does not obliterate other effective modes of execution available to the decree holder. Merely because order XXI Rule 86 stipulates that the property should be re-sold it cannot at all mean that other modes of execution available to the decree holder is completely wiped out on account of default committed, by the decree holder to deposit the purchase money together with the amount required for the general stamp paper for the certificate under Rule 94 or the latter amount, as the case may be. Failure to deposit the amount will certainly entail consequences mentioned under Rule 86, the most vital consequence being the sale becoming a nullity. The consequence of default is confined to order XXI Rule 86 not beyond that. The argument that the decree cannot be executed by any other modes than bringing the. property again for sale cannot be accepted as there is no such interdict under the Code. Order XXI Rule 86 has no overriding effect on the modes of execution available to a decree holder u/s 51 C.P.C. As the consequences following default of payment envisaged under Rule 85 is circumscribed by Rule 86 it is not possible to go beyond that Rule and hold that other modes of execution available to the decree-holder under the Code is irretrievably lost to him. Contention of the revision petitioner that the decree-holder has no right to attach the movable properties is clearly untenable. Order of the executing Court does not warrant interference.

There is no merit in the C. R P. and hence it is dismissed without any order as to costs.