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Judgment
Rule. Rule made returnable forthwith and heard finally, with the consent of learned counsel for the parties.
The Petitioner, i.e., the original Objection-Petitioner, purchaser of the middle shop in the property in question, challenges the judgment and order dated 14th November, 2017, passed by the learned District Judge-2, Aurangabad, (for short, the “learned District Judge”) in Miscellaneous Civil Appeal No.141 of 2017, whereby the order dated 5th April, 2017, passed below Exhibit 33 in Special Darkhast No. 97 of 2008 (for short, the ‘execution proceeding/Darkhast’)by the learned 6th Joint Civil Judge, Senior Division, Aurangabad, (for short, the “learned Executing Court”) came to be reversed.
The facts of the case, in a nutshell, are as under.
On 13th October 2010, the Petitioner has purchased the ‘middle shop’ in the premises in CTS No.7933 having M.H. NO.4-4-52, admeasuring 9.29 square meters (10’x10’ = 100 square feet) situated at Chauraha, Aurangabad (for short, the “shop”) by a registered Sale Deed duly registered at Serial No.7032/2010 dated 13th October, 2010. After purchase, he used it to store material for his shop.
After receiving the information of the execution proceedings initiated by Respondent No.1, the Decree Holder, against the original Judgment Debtor, Original Respondent No. 3 herein, Petitioner learnt that Respondent No.2, the auction purchaser, had purchased the property in question in Execution Proceeding No.97 of 2008. During the pendency of the said execution proceedings, the legal heirs of the original Judgment Debtor were brought on record. Accordingly, he filed an application seeking to set aside the sale proceedings and cancel the Sale Certificate dated 02nd July 2012, issued in the said execution proceedings, relating to the property in question, which includes the premises owned and possessed by him. He also learnt that Respondent No.1, the Decree Holder, initiated the aforesaid execution proceedings to satisfy the money decree. In those proceedings, the Decree Holder filed an application under Order XXI, Rule 54 of the Code of Civil Procedure, 1908 (for short, “CPC”), seeking attachment of the Judgment Debtor's property. Accordingly, the Judgment Debtor’s property was attached on 14th October 2010, i.e., after the Petitioner purchased the shop. Thereafter, Respondent No. 2 purchased the said property at the auction conducted in the execution proceedings, deposited the sale consideration before the Executing Court, and obtained the Sale Certificate. Subsequently, Respondent No.2, the auction purchaser, sought possession of the said property.
The Petitioner contends that the property in the auction sale deliberately includes his shop by the Decree Holder, in collusion with the Judgment Debtor and Auction Purchaser, without there being any cause or semblance of a cause for attaching the shop in question in the proceedings, thereby having played a fraud upon the Court. The Petitioner was not included as a party to the said execution proceedings, and the Respondents, namely, the Decree Holder and the Judgment Debtor, in collusion with each other, got the property in question attached by playing a fraud upon the learned executing Court. Therefore, he has applied to set aside the said sale. The Petitioner is not concerned with the claim involved in the suit or the recovery of the amount. If the sale proceedings are not set aside, he will suffer great injury. Therefore, he has moved an application (Exhibit 33) before the learned Executing Court.
The Petitioner claims that the decree holder failed to comply with the mandate under Order-21, Rule-54 of the CPC and played a fraud upon the Court by producing an incorrect/concocted valuation certificate, as well as non-serving a copy on the Petitioner, and obtained the order fraudulently. The decree holder also moved an Application under Order 21, Rule 66 of the CPC for settling the terms of proclamation for sale of the property admeasuring 156 square meters. However, in the said Application, the description of the property was not mentioned correctly/accurately.
Order of attachment of the property in question was passed on 14th October, 2010, i.e after he purchased the shop on 13th October, 2010, and, therefore, the shop owned by him was not required to be the subject matter of attachment by the decree holder.
The learned executing court, after hearing the parties on 29th October, 2012 and then 22nd January, 2013, cancelled the sale certificate issued by it and held that material irregularity vitiated the sale. The Decree holder challenged the order in Miscellaneous Civil Appeal No.108 of 2016. Learned District Judge-5, Aurangabad, by judgment and order dated 26th October, 2016, allowed the appeal, set aside the order of the learned Executing Court, and remanded the matter for fresh consideration.
Thereafter, the learned Executing Court has again heard the parties and, after considering the material before it, allowed the Application Exhibit 33 by order dated 5th April, 2017 and cancelled the sale certificate dated 2nd July, 2012 to the extent of the property sold by Respondent No.3 to the Petitioner and directed to refund the amount as mentioned in the sale deed dated 13th October, 2010 to the auction purchaser. Aggrieved by the order, the decree holder and auction purchaser preferred Miscellaneous Civil Appeal No.141 of 2017 before the learned District Judge-2, Aurangabad. After considering the material on record, the learned District Judge allowed the Appeal by order dated 14th November, 2017 and set aside the order dated 5th April, 2017 passed below Exhibit 33 by the Executing Court. Being dissatisfied with the said order, the Petitioner filed this Petition.
Heard learned Advocate for the Petitioner/Original Objection Petitioner, learned Advocate for Respondent Nos.1 and 2/decree holder and auction purchaser and learned Advocate for legal representatives of Respondent No. 3, i.e. Respondent 3(a) to 3(f). Perused the impugned order and record as pointed out by the respective Advocates for the parties. I have also considered the Judgments relied on by the learned Advocates for the respective parties.
Learned Advocate for the Petitioner vehemently contended that the learned Executing Court has not followed the mandate laid down in Order-XXI Rules 54 and 66 r/w Section 64 (2) of the C.P.C. in its proper perspective and erred in relying on the incorrect valuation certificate produced by the decree holder on record. In fact, Rule 54 of the CPC requires the Court to serve notice of attachment of the property in question. However, the decree-holder failed to provide a detailed description of the property in the schedule and later furnished an incorrect description, thereby failing to comply with Rule 54 of the CPC. Secondly, he argued that Rule 64 of the CPC casts a duty upon the Court to sell only such property, or such portion thereof, as may seem necessary to satisfy the decree. However, the learned Executing Court, without considering the mandate of Rule 64 of the CPC, erred in relying upon the incorrect/concocted valuation certificate produced by the decree-holder and thereby committed a grave error in passing the impugned order.
He has taken me through the Property Card (page 30) and submitted that the judgment debtor was the owner of the property admeasuring 27.75 square meters only instead of 156 square meters. Further, no notice of attachment was served on the property until execution of the sale deed of the shop in question; therefore, the decree holder failed to comply with the requirement under Rule 54 of C.P.C. He pointed out the attachment warrant (pages 77 and 78) and drew my attention to the schedule of the property, i.e., “property CTS No. 7933 situated at Chourah, Aurangabad.” (Page 78). However, nothing is mentioned in the said schedule. As per the order dated 14th November, 2010, the Bailiff executed the attachment warrant, in which neither the boundaries of the property nor the area admeasuring or description of the property, whether the property was constructed or open space, is mentioned. Therefore, execution of the warrant on the property in dispute creates doubt. He then took me through the Panchanama dated 14th October, 2010 (page 80) and submitted that in the panchanama, the house number was mentioned as CTS No. 7933, and the said house is shown as Single-storied only and the boundaries were mentioned. He also pointed out the sale certificate wherein the description of the property is mentioned and submitted that, as per the sale certificate, the property in question is a two-storied building consisting of three shops on the ground floor and, therefore, he submitted that the said facts create a doubt about attachment of the property in question by Bailiff or the said warrant was affixed on the actual property. Therefore, urged that the decree holder failed to comply with Order-21, Rule-54 of the C.P.C.
Furthermore, he pointed out the findings recorded by the learned District Judge in Paragraph No.13 of the impugned judgment and order and submitted that the learned District Judge has erred in recording that ‘it could not be observed that absence of notice of attachment or defect in attachment of property, therefore, provides an absolute right to such transferee like Respondent No.2 to ask to set aside auction sale’. The said finding is not tenable in the eyes of law and is therefore liable to be set aside. He drew my attention to Paragraph Nos. 9 and 10 of the judgment of M/s Mahakal Auto Mobiles Vs. Kishan Swaroop Sharma1 and submitted that the record does not reveal that the judgment debtor was served with a notice on the respondent under Order XXI Rule 54 of the CPC.
He also drew my attention to the panchanama (Page 80) and submitted that the panchanama prepared by the bailiff is faulty, and therefore, cannot be said to be a legal/proper panchanama, nor can the same be relied upon. He submitted that the panchanama did not indicate that the decree holder pointed out three shops and residential accommodation on the first floor to the bailiff. This also indicates that the bailiff's panchanama is faulty and cannot be relied upon. This fact shows that the decree holder committed fraud while preparing the panchanama. He then points out material irregularities in the proceedings.
He shows the application (Exh.20) filed by the decree holder on 15th April, 2011 seeking correction in the area of the plot/property in question, i.e. instead of 156 square meters, it be mentioned as 27.75 square meters in the schedule of the property in question, and pointed out the valuation of the property from the valuation certificate, and contended that nobody had objected to the description of the property till confirmation of the same. He submitted that, as per the attachment warrant, the property was attached on 14th October, 2010; however, the description of the property in the schedule was corrected on 15th April, 2011, i.e., after affixing the said warrant to the property. It does not show that, after correcting the property area, the same was served at the property at any time. Further, the subsequent application filed on 24th January, 2011 under Order XXI Rule 66 for attachment of the property, CTS No. 7933, admeasuring 156 sq. mtrs., and the Executing Court passed an order on 08th February, 2011 under Order XXI Rule 66 of the CPC to affix the proclamation over the property in question and submitted that the correction was carried out after affixing the notice under Order XXI Rule 54 and 66 of the CPC. However, he failed to point out from the record that after correcting the area of the property, notice was affixed on the property at any time; therefore, it cannot be said that the notice was properly served under Order XXI Rule 54 or 66 of the CPC.
He advanced the argument that on 17th June, 2010, the order of issuance of attachment warrant under Order XXI Rule 54 of the CPC was passed by the learned Executing Court and the said attachment warrant was not served till 14th November, 2010. Similarly, the decree holder neither followed nor complied with the procedure laid down in Order XXI Rule 66 and 67. Therefore, he urged that the Petition be allowed.
Per contra, Mr. Patni, learned counsel, strenuously argued that incorrect description of the property is nothing but a mere irregularity. Therefore, as per Order XXI Rule 90, Respondents No. 3(a) to (f) are not entitled to set aside the sale on that ground. They never raised any ground of defect in the sale while following the procedure under Rules 54 and 66, and the sale was confirmed; therefore, it cannot be said that the sale certificate is affected by the said irregularities.
The Petitioner has challenged the said sale certificate on two grounds, i.e. (i) fraud played upon the Court; (ii) purchased the property one day before the notice was affixed on the property. To refute the first ground, Mr. Patni drew my attention to Paragraph No. 5 of the application under Order XXI Rule 90 or Section 47 of the CPC (Exh.33) and submitted that the application does not plead fraud by the decree holder. The pleading is silent on the said ground. The application does not specifically state or describe how the decree holder committed fraud. Similarly, the application does not describe the identity of the property; therefore, the learned District Judge is entitled to reject it.
To resist the second ground, Mr. Patni canvassed that, although the Petitioner purchased the shop one day before the notice attached to the property in question, in such circumstances, the burden lies on him to prove that he was a bona fide purchaser, but he failed to discharge that burden. He has not examined any witness in support of his case. Under Section 53 of the Transfer of Property Act, 1882 (for short, ‘T.P. Act’), the burden lies on the purchaser to prove that he purchased the property in good faith. No material on record indicates that he has paid the amount. On the contrary, on 17th June, 2010, the order of attachment was passed and, pursuant to it, the property was attached and put up for auction; the auction purchaser purchased it, and the sale was confirmed by issuing a sale certificate dated 02nd July, 2012. Therefore, under Section 64 of the CPC, any transfer made after the order of attachment was passed is a sham and fraudulent transfer and, therefore, not in good faith at all. Consequently, the same is void. Similarly, inadequacy of the sale price is not sufficient ground for setting aside the sale. No specific application has been filed to date to set it aside. Likewise, no averment is made in the application that the objection Petitioner is a bona fide and honest purchaser. Lastly, he submitted that the argument advanced by him in the connected Writ Petition be taken into consideration.
In reply, Mr. Khivesara, learned counsel for the objection Petitioner, submitted that Section 53 of the T.P. Act is not applicable as a depriving creditor does not come within the scope of said Section. Therefore, the judgment in Sanat Kumar Chakravary Vs. Krishnadhan Mazumdar and another2 does not apply to the case at hand. The judgment in Barkat Ali and another Vs. Badri Narain (D) by L.Rs.3 is also not applicable to the case at hand. Likewise, the observations made in the judgment in Sunita Ishwar Samola and another Vs. Baba Mungipa Steel Industry and others4 do not apply to the case at hand as the decree holder failed to make out a prima facie case. In C. Abdul Shukoor Saheb Vs. Arji Papa Rao5, the facts differ from the case at hand; therefore, the said judgment is also not applicable.
Lastly, he submitted that having considered the mandate laid down under Order XXI Rules 54, 57, 60, 90 and Section 47 of the CPC, the Court has ample power to hold that the sale deed is legal, and therefore, urged for allowing the Petition by excluding the property purchased by him from the sale certificate.
Mr. Patni, learned counsel, to counter, submitted that the judgment in Desh Bandhu Gupta Vs. N.L. Anand & Rajinder Singh6 does not apply to the case in hand, as there is no allegation regarding the proclamation of sale under Order XXI Rule 90 of the CPC. Therefore, the judgments relied upon by the learned counsel for the Petitioner do not apply to the present case. He, therefore, urged that this Petition be dismissed with costs.
It is pertinent to note that this Writ Petition and Writ Petition No. 14570 of 2021 were heard together at length. Therefore, it is appropriate to consider all documents relied upon by the learned counsel for the respective parties in both Writ Petitions while determining the disputed question in each Writ Petition.
The parties are hereinafter referred to as per their original status in the execution proceedings.
While dealing with Question Nos. 1 to 3 that arise in connected Writ Petition No.14570 of 2021, in Paragraph No. 9, after appreciating the material on record in detail, this Court has categorically held that the learned Executing Court failed to follow the mandate laid down under Order XXI Rule 54, 64, and 66 of the CPC in its proper perspective while holding sale of the property in question as absolute under Rule 92 of the CPC. Similarly, the decree holder failed to demonstrate that the application filed under Order XXI Rule 90 of CPC is barred by limitation, and therefore, no interference is required in the judgment and order dated 18th February, 2021 passed by the learned District Court, Aurangabad in Miscellaneous Civil Appeal No. 186 of 2019, which remanded the matter to the learned Executing Court and directed to start fresh process for sale from the stage of Order XXI Rule 66 of the CPC, however, this Court only clarified to commence the execution of process afresh from the stage of Order XXI Rule 54 of the CPC instead of Order XXI Rule 66 of CPC.
It is pertinent to note that the learned District Judge-2, by judgment and order dated 18th February, 2021, cancelled the sale certificate dated 02nd July, 2012 (Exh. D, page 29 in connected W.P. No.14570 of 2021) (excluding the property of the objection Petitioner) and directed the learned Executing Court to start a fresh process for sale from the stage of Order XXI Rule 66 of CPC. In Writ Petition No. 14570 of 2021, this Court has already confirmed the said order; however, this Court clarified that the execution process should start afresh from the stage of Order XXI Rule 54 of the CPC, instead of Order XXI Rule 66 of the CPC and after taking into consideration the mandate in Rule 64 of Order XXI of the CPC.
Thus, the above-said fact itself indicates that the sale certificate issued by the Executing Court was cancelled and set aside by the learned District Court and the said order was confirmed by this Court.
It is worth noting that the Petitioner herein, by filing the application under Exhibit 33, is claiming the relief that the sale certificate dated 02nd July, 2012 be cancelled. In the connected Writ Petition No. 14570 of 2021, the legal heirs of the judgment debtor, i.e. Respondent Nos. 3(a) to (f), filed an application below Exhibit 102 in Special Darkhast No.97 of 2008 claiming the identical relief, and the learned Executing Court rejected it. However, the learned District Judge allowed the Miscellaneous Civil Appeal No.186 of 2019 and set aside the order dated 29th August, 2019 passed by the learned Executing Court below Exhibit 102. The learned District Judge also cancelled the sale certificate dated 02nd July, 2012, and this Court confirmed the said order in connected Writ Petition No.14570 of 2021. Thus, it is evident that the prayer sought by the objection Petitioner below Exhibit 33 in the Execution Proceeding does not survive as the same has already been granted by the learned District Court in Miscellaneous Civil Appeal No.186 of 2019 by allowing the Application below Exhibit 102 in the same execution proceedings, filed by the Respondent Nos.3(a) to (f) herein. Therefore, in my view, it would be appropriate to quash and set aside the orders dated 14th November, 2017 passed by the learned District Judge-2, Aurangabad in Miscellaneous Civil Appeal No.141 of 2017 and the order dated 05th April 2017 passed by the learned Executing Court below Exhibit 33 in execution proceedings by remanding the matter to the learned Executing Court for reconsideration of the application Exhibit 33 afresh by affording an opportunity to the parties and to commence the execution proceedings for sale of the property in question from the stage of Order XXI Rule 54 of the CPC and taking into consideration the mandate in Rule 64 of the CPC as clarified in W.P. No.14570 of 2021.
In the result, the Writ Petition is allowed. The impugned order dated 14th November, 2017, passed by the learned District Judge-2, Aurangabad, in Miscellaneous Civil Appeal No.141 of 2017, as well as the order dated 05th April, 2017, passed by the learned Executing Court below, Exhibit 33, in Special Darkhast No. 97 of 2008, are hereby quashed and set aside.
The matter is remanded to the learned Executing Court for reconsideration afresh of the application, Exhibit 33, by affording an opportunity to the parties and to pass an order thereon, by commencing the execution proceedings afresh for sale of the property in question from the stage of Order XXI Rule 54 of the CPC and to take into account the mandate in Rule 64 of the CPC as clarified in W.P. No.14570 of 2021.
In view of the above, the Writ Petition stands disposed of.
The Rule is made absolute. No order as to costs.
After pronouncement of the judgment, learned counsel for the Decree Holder submitted that the Decree Holder intends to challenge the judgment before the Hon’ble Supreme Court and, accordingly, prayed for a stay of the judgment's operation for six weeks from today.
Having considered the request and the facts of the case, I deem it appropriate to stay the operation and implementation of the judgment for a period of six weeks from today.
Accordingly, the operation and implementation of the judgment shall remain stayed for a period of six weeks from today.