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Judgment
B.S. Patil, J—W.P. No. 30627/2010 is filed by the judgment debtor challenging the order dated 25.08.2010 passed by the Executing Court dismissing I.A. No. 6 filed in Execution No. 73/1993 under Order XXI Rule 90 CPC praying for setting aside the court sale held on 01.02.1999. C.R.P. No. 84/2011 is filed by the very judgment debtor challenging the order dated 10.12.2010 passed by the Executing Court closing the execution proceedings in Execution No. 73/1993.
Execution proceeding was initiated pursuant to the decree passed in O.S. No. 218/1981. The Executing Court had earlier issued sale proclamation by passing an order on 15.10.1997 to conduct spot sale and the sale was conducted on 22.10.1997. The auction purchaser did not deposit any amount though he was the highest bidder for a sum of Rs. 8,00,000/-. Hence, the said sale was cancelled. Subsequently, as is apparent from the order sheet maintained in the execution proceedings, vide order dated 23.11.1998 the second sale was ordered to be conducted on 26.11.1998. As no bids were forthcoming the sale could not be held. On the third occasion, pursuant to the sale proclamation issued, the spot sale was held on 29.01.1999 and the court sale was held on 01.02.1999. In the spot sale one Mr. Ibrahim, son of late Mohammed Abdullah was declared as successful bidder for a sum of Rs. 5,00,000/- and in the Court sale held on 01.02.1999 one Mr. Mohin Pasha - respondent No. 2 in W.P. No. 30627/2010 was declared as successful bidder for a sum of Rs. 5,25,000/-.
An application was filed under Order XXI Rule 90 CPC by the judgment debtor seeking to set aside the sale alleging that there was material irregularity and fraud committed, inasmuch as the decree holder and the auction purchaser had colluded with each other and therefore, the property had been sold for a lesser value than its real value. They also contended that there was no proper publication in the newspaper regarding the proposed sale. It was alleged that in the spot sale held on 16.06.1998 highest bid was Rs. 8,00,000/- and the Court sale held on 18.06.1998 the highest bid was at Rs. 8,04,000/- and therefore, the instant sale, according to the judgment debtor was illegal resulting in serious injury to the judgment debtor. The decree holder Vijaya Bank resisted the application. The auction purchaser was also notified. He has also filed objection.
The Executing Court having provided opportunity to both parties has passed the impugned order recording a finding that the sale proclamation and the court sale held by way of public auction was in accordance with law and that the judgment debtor has failed to prove any material irregularity and fraud in the auction sale conducted. It has also further found that the judgment debtor had failed to establish that the property was sold for a lesser value than its actual market value. Hence, the application was dismissed. Aggrieved by the same, the present writ petition has been filed.
I have heard Sri S.G. Bhagavan, learned counsel for the petitioner and Sri Jayakumar S. Patil, learned Senior Counsel for the respondent.
Main contention urged by Sri S.G. Bhagavan is that in terms of Order XXI Rule 66(2)(e) CPC particularly in the light of the Karnataka Amendment, the estimated sale price of the decree holder and the estimated sale price of the judgment debtor was required to be mentioned in the proclamation of sale published, but, in the instant case, the sale proclamation does not contain any such estimated sale price of either the decree holder or the judgment debtor and therefore, there is material irregularity in the process of conduct of sale resulting in substantial injury to the judgment debtor. In support of this contention, he has placed reliance on the judgment of this Court in the case of Y. Rupla Naika by his GPA holder Sri Sevalal Sangana Basava Swamiji Since Dead by his Lrs. Vs. Mohammed Musthafa by his GPA holder Mohammad Siraj, Tajmal Ahamed, Sri. K.C. Kumar and Sri. B. Yogesha .
Sri Jayakumar S. Patil, learned Senior Counsel appearing for the decree holder submits that application filed under Order XXI Rule 90 CPC was barred by time as it was filed beyond the period of limitation prescribed under Article 127 of the Limitation Act. In this regard, he points out that sale was conducted on 01.02.1999 and the application I.A. No. 6 came to be filed on 17.04.1999 beyond the period of 60 days as required under Article 127 of the Limitation Act. He further points out that Section 5 of the Limitation Act which provides for extension of period of limitation has no application to the provisions contained under Order XXI CPC and therefore, without going into other aspects of the matter, application being barred by time deserved to be dismissed by the Court below. He has placed reliance on the judgment of the Apex Court in the case of Mohan Lal Vs. Hari Prasad Yadav and Others, (1994) 4 JT 116 : (1994) 108 PLR 234 : (1994) 2 SCALE 1021 : (1994) 4 SCC 177 : (1994) 1 SCR 107 Supp : (1994) 2 UJ 458 .
It is his next contention that Karnataka Amendment to Order XXI Rule 66(2)(e) CPC whereunder the value of the property as stated by the decree holder and the value of the property as stated by the judgment debtor are required to be mentioned in the proclamation of sale by public auction has no application to the present case because neither the judgment debtor, nor the decree holder had stated the value of the property and therefore, question of mentioning the price in the sale proclamation did not arise.
He invites the attention of the Court to the second proviso to Order XXI Rule 66(2)(e) to contend that even the Court is not required to enter in the proclamation of sale its own estimate of the value of the property and the Court is required to include the estimate, if any, given by either or both of the parties. It is also urged that this contention was not taken up by judgment debtor in the Court below while filing the application seeking cancellation of sale.
Learned Counsel for the respondent has also placed reliance on Order XXI Rule 90(2) CPC to contend that unless substantial injury is shown to have been caused, irregularity or fraud in the conduct of auction sale shall not result in cancellation of the sale. Placing reliance on the judgment in the case of Shri Radhey Shyam Vs. Shyam Behari Singh, AIR 1971 SC 2337 : (1970) 2 SCC 405 : (1971) 1 SCR 783 , it is contended by him that irregularity in the sale coupled with substantial injury has to be established. He has sought to distinguish the ratio laid down in the judgment in the case of Y. Rupla Naika by his GPA holder Sri Sevalal Sangana Basava Swamiji Since Dead by his Lrs. Vs. Mohammed Musthafa by his GPA holder Mohammad Siraj, Tajmal Ahamed, Sri. K.C. Kumar and Sri. B. Yogesha . He has also invited the attention of the Court to the case of Janak Raj Vs. Gurdial Singh and Another, AIR 1967 SC 608 : (1967) 2 SCR 77 , to contend that even where an ex-parte decree is set aside, the bona fide auction purchaser is protected.
Attention of the Court is invited to an unreported judgment of the Apex Court in Civil Appeal No. 161/2014 in the case of Sadashiv Prasad Singh v. Harendar Singh & Others disposed of on 08.01.2014, to contend that rights of property purchased in court auction cannot be extinguished except in cases where the purchase can be assailed on any allegation of fraud or collusion and that court cannot ignore the vested right of the auction purchaser in the property.
Having heard the learned Counsel for both parties and on careful perusal of the entire materials on record, the only question that falls for consideration is,
"whether the order passed by the court below dismissing the application filed under Order XXI Rule 90 suffers from any illegality warranting interference in exercise of the jurisdiction vested in this Court under Article 227 of the Constitution of India?"
The ground on which the auction sale was challenged before the executing court is, that the sale conducted suffered from material irregularity resulting in substantial injury. The main contention advanced before this Court is, that in terms of Order XXI Rule 66(2)(e) CPC as amended by the Karnataka Amendment, the sale proclamation published ought to have contained the estimated sale price of the property as suggested by the parties i.e., the decree holder and the judgment debtor. It is true as per Order XXI Rule 66(2)(e) CPC, Karnataka Amendment suggests that value of the property as stated by the decree holder and the judgment debtor shall be specified. The question is whether the value of the property had been indeed specified by the decree holder and/or judgment debtor in the instant case. The records do not disclose that either the decree holder or the judgment debtor had suggested the estimated value of the property for being incorporated in the proclamation of sale published. No such material is forthcoming from the records.
Indeed, Counsel for the respondent is right and justified in contending that in the absence of any such specification of the value made by the parties, the court cannot enter in the proclamation of sale the unestimated value of the property. Hence, it is not open for him to contend that there is violation of the provision contained under Order XXI Rule 66(2)(e) CPC. Therefore, the contention urged by the learned Counsel Mr. S.G. Bhagawan placing reliance on the judgment in Y. Rupla Naika''s case cannot be accepted.
It has to be also noticed here that as could be found from the order passed by the court below though on an earlier occasion in the auction sale conducted on 16.06.1998 & 18.06.1998 both in the spot sale and the court sale, the property had been sold for a sum of Rs. 8,00,000/- and Rs. 8,04,000/- respectively, the purchaser in the said auction sale did not deposit 1/4th of the sale consideration therefore, the said sale could not materialise. Hence, as rightly held by the court below, the sale consideration of Rs. 8 lakhs fetched in the abortive attempt made to sell the property cannot be treated as market value of the property to come to the conclusion that the present market value fetched in the spot sale conducted on 29.11.1999 and the court sale conducted on 01.02.1999 at Rs. 5,01,000/- & Rs. 5,25,000/-, respectively is inadequate. It is for this reason the court below has rightly held that it could not be said that there was any substantial injury suffered by the judgment debtor on account of the sale conducted at the market value as referred to above.
In addition, it is also necessary to notice here that mere insufficiency or inadequacy of the consideration does not amount to substantial injury within the meaning of Order XXI Rule 90 CPC. Indeed, this aspect of the matter has also been rightly taken into consideration by the court below.
The other question that the learned Senior Counsel has canvassed is that the application filed under Order XXI Rule 90 CPC was barred by time. No doubt Article 127 of the Limitation Act applies to the case and the period of limitation prescribed is 60 days from the date of sale for filing the application to set aside the sale. The court sale in this case has been conducted on 01.02.1999. As per the order sheet maintained by the court below, application for setting aside the sale was filed on 17.04.1999. If this date is taken into consideration, the application filed was clearly barred by time as it was not filed within 60 days from the date of sale. It is also necessary to notice that Section 5 of the Limitation Act is not applicable to the case on hand because its application is excluded to the provisions contained under Order XXI Rule 90 CPC. The judgment of the Apex Court in this regard relied upon by the learned Senior Counsel in Mohan Lal''s case also supports the said contention.
However, it is contended by the learned Counsel for the petitioner that indeed, the application was filed on 25.03.1999 and not on 17.04.1999. An attempt is made to take the court through the original application which is part of the record to contend that the application had been filed on 25.03.1999. However, the fact remains that there is no material placed before the Court to show that application had been filed on 25.03.1999 before the office of the court below. On the other hand, the order sheet discloses that on 17.04.1999, the application under Order XXI Rule 90 CPC was filed in the court. Indeed, in the writ petition filed, the judgment debtor/writ petitioner has stated in paragraph 3 that on the same day when the application dated 06.04.1999 was filed by the Syndicate Bank vide Annexure-D to the writ petition, petitioner also filed an application under Order XXI Rule 90 r/w Section 151 CPC. Annexure-D - application was filed by the Syndicate Bank on 06.04.1999. If this is taken into consideration, then on his own showing, the judgment-debtor had filed the application seeking to set aside the auction sale on 17.04.1999. In such circumstances, having regard to the records maintained by the court below in the form of order sheet which disclosed that application was filed on 17.04.1999 and in the wake of the averment made in the writ petition by the very judgment debtor, it can be safely said that the application was indeed filed on 17.04.1999.
In the light of the above, it has to be stated that the application filed under Order XXI Rule 90 CPC was not within the period of limitation and was barred by time and hence, on this ground alone, the court below ought to have dismissed the application. Thus, none of the contentions urged by the Counsel for the judgment debtor - revision petitioner are tenable in law. In such circumstances, the writ petition being devoid of merits deserves to be and is accordingly dismissed.
In so far as the revision petition is concerned, in the light of the disposal of the writ petition, nothing survives in the revision petition as the order challenged therein is only the closure of the proceedings in the execution petition in view of the realization of the decreetal amount by virtue of auction sale conducted. Therefore, the revision petition is also dismissed.