K. Rama Rao vs Ch. Venkateswar Rao and another

The judgment-debtor filed a petition under Sections 144 and 151, C.P.C. on 25-6-85 on the file of the Court of the district Munsif, Bodhan, for redelivery of possession of the property on the ground that the sale that has been conducted by the Court is a nullity. The lower Court allowed that petition directing that one acre of land in S. No. 113/1, situated at Baswaipally, in possession of the 2nd respondent, be delivered to the judgment-debtor. It is against that order, the present revision petition has been filed.

The facts that are emanated before the filing of the petition are as follows:

The 1st respondent in the Court below who is the decree-holder (2nd respondent herein) filed O.S. No. 249 of 1981 against the judgment-debtor for recovery of Rs. 5030/-and obtained a decree on 25-8-1982. Thereafter, E.P.No. 73 of 1982 for attachment and sale of the land measuring Ac. 3-19 1/2 guntas in S. No. 113/1 situated at Baswaipally was filed. An extent of one acre of land on the Northern side was sold for Rs. 9,000/- on 19-12-1983 in favour of the 2nd respondent. The auction purchaser deposited 1/4th amount on the date of the auction and the remaining amount on 29-12-1983. The required stamps for the sale certificate or the required amount for such stamp duty was not deposited by 29-12-1983. The stamps were deposited on 19-9-1984 on the direction given by the Court. After completing the formalities, the sale certificate was issued on 25-2-1985 and 24-4-1985 and one acre of land was delivered to the auction purchser on 14-5-1985.

The main contention of the judgment-debtor is that as the requisite stamps were not deposited within the period of 15 days from the date of the sale as provided under O. 21, R. 85, C.P.C., the sale itself has become a nullity and the effect of it is that there is no sale at all in the eye of law. The auction purchaser''s case that the judgment-debtor filed an application under Order 21, Rule 90, C.P.C. and that application after contest has been dismissed. Against that C.M. A. No. 6 of 1984 has been filed and the same was also dismised on 8-8-1984. The sale was confirmed on 3-9-1984 and as per the directions of the Court the stamps were deposited on 19-9-1984. The sale certificate was issued on 121-5-1985 and possession was delivered subsequently. The revision petition filed against C.M.A. was also dismissed on 11-12-1984.

The contention of the petitioner-herein who is the auction purchasre, who is aggrieved by the orders on the application filed on 14-4-1985 is that the petition that has been filed as such is not maintainable.

Sri Eswara Prasad, the learned counsel appearing on behalf of the judgment-debtor contended that the sale itself/is a nullity and the Court has got ample power u/s 151, C.P.C. to grant relief. Section 144 of the CPC contemplates restitution. The word ''restitution'' in Section 144 means restoring to a party, on the variation or reversal of decree, what has been lost to him in execution of the decree or directly in consequence of that decree, though not through proceedings under it. S. 144 does not apply unless the property was lost in execution of the decree or directly inconsequence of that decree. Granting of- restitution, however, is not discre-tionaty. The principle of the doctrine of restitution is that on the reversal of a decree in appeal the law imposes an obligation on a party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost.

On facts of this case the original decree that has been passed by the lower Court has not been varied or modified, The auction that was held and knocked down in favour of the auction purchaser has been challenged by the judgment-debtor under Order 21, Rule 90 and the same was dismissed by the original court, the appellate Court and the revisional Court also. When there is a finality of the original decree and the same also has been decided by the appellant and I when it has not been varied, the question of applying Section 144, C.P.C. does not arise. I

The only other section that remains for consideration is Section 151, C.P.C. In this case, the judgment-debtor took different steps even after the sale was knocked down and he failed in all his attempts. The party who has availed of the remedy under O.21, R. 90, C.P.C. and who was unsuccessful both" in the appellate Court and in the High Court in revision cannot be allowed to contend that to meet the ends of justice Section 151 can be allowed to operate in this cases. Where the auction sale is not in conformity with Rule 85 it can be held that there is no sale and the auction purchaser does not get any right even if the sale is confirmed. The judgment-debtor can resist the delivery of possession on the sole ground that the sale is a nuillity. But he has not resisted the delivery of possession and after possession has been delivered he filed the application after the delivery of possession and when once the delivery of possession has been effected, the question of applying Section 151 does not arise. It is true that stamp duty has been deposited within the time prescribed. But by virtue of the subsequent proceedings that have been taken, he could not deposit the same. Order 21, Rule 86, C.P.C. makes it clear that if there was a default within the period prescribed in Rule 85, the property shall be resold and the defaulting purchser shall forfeit all his claims to the property. Rules 85 and 86 of Order 21, C.P.C. are mandatory. But, however, when the Court has called for the stamps and the same have been deposited and the party has allowed the matter to reach finality, it may not lie in his mouth to contend that the sale is a nullity particularly when he has taken recourse of Order 21, Rule 90, C.P.C. and particularly when he has not taken the stand during the course of the proceedings which ended finally on 11-12-1984 that the sale is a nullity on the ground that the required stamps have not been deposited within time though the entire consideration amount has been deposited with him the stipulated time.

Sri Eswara Prasad, the learned counsel for the judgment-debtor has relied upon the following decision Mudragada Suryanarayanamurthi Vs. Southern Agencies, Rajahmundry and Another, ; State Govt. of A.P. v. M/s. Manick-chand Jeevaraj & Co. AIR 1973 Andh Pra 29; Puthiya Veettil Chandanathil Mukkayi and Others Vs. Thottathi Parambil Pathavumma and Others, and Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, and contended that when the sale is a nullity the question of taking steps under Rules 85 to 87 of Order 21 does not arise. To my mind when a party has not challenged on the ground of non-deposit of the stamps and has alibwed the sale certificate to be issued and when the matter has reached a finality, he is not allowed to contend that the sale is a nullity after a lapse of two years. It must be borne in mind that the question of filing a petition under Order 21 is barred by time and the proper remedy that is available for the party is under Art. 127 of the Limitation Act. What could not be done under law that is available to a party cold not be allowed to be done by invoking the provisions of Section 151, C.P.C. particularly when there are laches on the part of the judgment-debtor in taking effective steps. It is to be noted here that the judgment-debtor was active in taking steps under Order 21, Rule 90, C.P.C. and he failed in all his attempts and it appears his son also filed a suit subsequently for partition. This clearly indicates that there are no bona fides in the claim much less no right has been accured to him to invoke the jurisdiction of this Court u/s 151, C.P.C. The jurisdiction u/s 151, C.P.C. maybe invoked sparingly that too where it has been found that there is no alternative remedy that is available for the party concerned. The sale certificate was issued and the possession was delivered as early as in May, 1985 and after delivery of possession only, this petition has been filed when the sale was held on 19-12-1983.

The revision petition is accordingly allowed. No costs.

Petition allowed.