T. Rudrappa vs Smt. Gowramma and Others

Hari Nath Tilhari, J.—This is a civil revision u/s 115 arises out of an Order dated 17.11.1995 delivered by K. Sathyamoorthy Holla, Principal District Judge, Kolar, dismissing application I.A. 10 moved by the judgment debtor-revision applicant.

The facts of the case in brief are that in a Motor Vehicles Case No. 455 of 1988 decided on 18.12.1993 an award was made in favour of Respondents for a sum of Rs. 1.51,925/-. The revision applicant did not pay the compensation amount inspire of it being awarded and as such the application for execution was moved. The Ashok Leyland Lorry bearing No. CAS-942 be kinging to the judgment debtor-revision applicant was attached and was put to auction sale and finally the lorry was auctioned on 26.10.1995 and the purchaser has paid the entire bid money of Rs. 1,35,000/-. The judgment-debtor on the same day filed written objection to the effect that there was no proper publication of sale proclamation or notice before conducting of the sale and so there has been irregularity in conducting the sale. This application was opposed. The learned District Judge taking into consideration provisions of Order 21, Rules77 and 78 opined that when the sale which has become absolute and has been confirmed, cannot be questioned on the ground of irregularity and if there is any grievance, the judgment debtor has got remedy of filing a suit and rejected the judgment debtors application/objection. Having felt aggrieved by the above mentioned judgment and order of the learned Principal District Judge, Kolar, the judgment debtor has come up in revision.

I have heard the learned Counsel for the applicant and the main submission advanced by the learned Counsel-Sri D. O. Kotresh is that when he bad filed objection to the sale proclamation and its publication stating that the sale proclamation has not been published according to law and there is irregularity and the Courts below could not confirm the sale and make the sale absolute without first disposing of his objection and recording any finding if there has been any irregularity in sale.

This contention of Sri D. O. Kotresh, has been hardly contested by Sri J.G. Chandra Mohan, learned Counsel for the purchaser-opposite party. The learned Counsel submitted that there is no error or jurisdictional error in the Order of the learned District Judge. Sri J.G. Chandra Mohan invited my attention to the provisions of Order 21, Rule 78, CPC and urged that in view of the provisions of Order 21, Rules 77 and 78 of the Code of Civil Procedure, once the sale of movable property has taken place and the highest bidder has paid the sale price then the sale has become absolute and that it is not open to challenge on the ground of any illegality or irregularity in the conducting of sale or proclamation of sale and if there is any grievance regarding conducting the sale, publication etc., the party aggrieved by sale has the remedy of filing a Civil Suit as mentioned under Order 21, Rule 78.

I have applied my mind to the contentions advanced by the learned Counsel for the parties. That as regards the proclamation of sale, the procedure is prescribed under Order 21, Rule 66 where such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and as regards the publication of the mode of making publication and its publication, Rule 67 provides that it shall be done in the manner prescribed by Rule 54(2). As per sub-rule (1) of Rule 67 read with Rule 54(2) of Order 21 it provides the mode how the order of attachment or proclamation of sale shall be given publication. Objections to the publication of proclamation of sale and irregularity therein, so far as the sale of immovable property is concerned no doubt as has been provided, could be taken under Order 21, Rules 89 & 90, etc. But here in the present case, the property that has been put to auction sale is movable property i.e. Lorry. Rules 89 or 90 of Order 21, CPC are not applicable. It will be proper to refer to and make reference of Order 21, Rule 77 and as well as Rule 78. Order 21, Rule 77 reads as follows:

Sale by public auction - (1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be resold;

(2) On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the same shall become absolute; and

(3) Where the movable property to be sold is a share in goods belonging to the judgment debtor and a co-owner and two or more person, of whom one in such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

Irregularity not to vitiate sale, but any person injured may sue - No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of another person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and fur compensation in default of such recovery.

Perusal of Rule 77 per se reveals that the price of the property put for sale shall be paid at the time of sale or as soon as the officer or the person holding sale directs and in case of default of payment forthwith it shall be resold. It means in case of sale of movable property, the highest bidder has to pay price forthwith at the time of sale or immediately as soon as he is directed to pay. Sub-rule (2) of Rule 77 very clearly provides that the shall become absolute as soon as the payment of purchase money is paid and the officer or other person holding the auction sale grants a receipt for the same.

Order 21, Rule 78 provides that no irregularity in the publication or conducting of the sale of movable property shall vitiate the sale. It further provides that any person alleges that he has sustained any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery. Reading of Rule 78 thus reveals that irregularity in the publication or in the conduct of sale on the part of the Officer of the Court is not to vitiate sale of movable property. It is only the irregularity at the hands of other person provided it causes some injury then it may give cause of action to the person injured to file the suit against him. This appears to be position of law under rules itself. When I observed so, I find the support from the decision of this Court in the case of K. Sardar Vs. Canara Bank,

In para 17 of the order in aforementioned case, the Hon''ble Mr. Justice M. Ramakrishna, J. as he then was observed as under:

So far as the allegation of irregularity in issuing sale proclamation or conducting sale pursuant to it is concerned, it will not vitiate the sale and if anybody it aggrieved by reason of such irregularity, he may institute a suit for appropriate relief and he cannot resort to file any application before the Executing Court for cancellation of the sale held in public auction, in respect of movable property.

Thus considered in my opinion the Order passed by the learned District Judge in the present case does nut suffer from any irregularity or illegality nor does it suffer from any jurisdictional error covered u/s (a)(b)(c) of Section 115. As such the revision petition is dismissed with costs.