1. This is a First Appeal From Order dated 1-5-1976 passed by the Civil Judge. Azamgarh, in execution proceedings.
2. The facts leading up to this appeal can briefly be stated as under:
3. Respondent No. 1 obtained a decree against the appellants for Rupees 28,585.85 from the Calcutta High Court. In execution of that decree, a house, shops and bhumidhari plots belonging to the appellants were attached. The auction sale held in respect of bhumidhari plots was cancelled, while the house and shops were sold for Rs. 1,44,000.00 on 8-1-1976. Thereafter on 4th February, 4976, the appellants filed objections under Section 47 C.P.C. On 6th February, 1976, the appellants filed an application under Order XXI, Rule 89, C.P.C. for setting aside the auction sale, and deposited the entire amount as required under the said provision of law. The objections under Section 47, C.P.C. were dismissed as not pressed on 17th of April, 1976. The application under Order XXI, Rule 89 was rejected by the court below on the ground that the objections purporting to have been filed by the appellants under Section 47, C.P.C. were in effect objections under Order XXI, Rule 90, C.P.C. and, in view of the provisions contained in Sub-Rule (2) of Rule 89 of Order XXI, no application under Order XXI, Rule 89 for setting aside the sale could be made while the application under Order XXI, Rule 90 was pending. In the opinion of the court below, the application under Order XXI Rule 89 could be deemed to have been made only on 17-4-1976, when the objections purporting to be under Section 47, C.P.C. were got rejected by the appellants. The limitation for filing the application under Order XXI, Rule 89, C.P.C. having expired before it, the application was barred by time.
4. Order XXI, Rule 89 (2) reads as follows:
'Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this Rule.'
5. The expression 'to make or prosecute' occurring in Order XXI, Rule 89 (2) came in for consideration in the case of Shiv Prasad v. Durga Prasad : 3SCR526 . It was observed (at page 959):
'The words used in the Sub-rule are 'make or prosecute'. If it were to be held that the applicant is not entitled merely to prosecute his application under Rule 89 unless he withdraws his application under Rule 90, then the word 'make' would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words. If a person has first applied under Rule 90 to get aside the sale, then, unless he withdraws his application, he is not entitled to make and prosecute an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a person has filed an application under Rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter.'
6. In view of the aforesaid rule laid down by the Supreme Court it must follow that if the objections filed by the appellants on 4-2-1976 were objections under Order XXI, Rule 90, C.P.C. the application moved by them on 6th of February, 1976 under Order XXI, Rule 89, C.P.C. could only be deemed to have been made on 17th of April, 1976 viz. the date on which the objections dated 4.2.1976 were rejected. The question for consideration, therefore, is whether the objections dated 4-2-1976 filed by the appellants were objections under Section 47 of the Code of Civil Procedure or they were objections under Order XXI, Rule 90, C.P.C. It is true that in the opening sentence of the objections it was mentioned by the appellants that the objections were being filed under Section 47 C.P.C. It cannot, however, be decided on that basis alone as to whether the objections were actually under Section 47, C.P.C. or they were objections falling under Order XXI, Rule 90, C.P.C. In order to arrive at a conclusion on this point, it will have to be scrutinised as to what is the nature of the objections actually contained therein.
7. The first ground of attack taken up by the appellants was that no proclamation of attachment of the property was made, nor the attachment was effected on the spot and, consequently, the sale deserved to be set aside. Learned counsel for the appellants urged that Order XXI, Rule 54 of the Code of Civil Procedure, inter alia, makes it mandatory that, whenever any immoveable property is attached, the order prohibiting the judgment debtor from transferring the attached property shall be proclaimed at some place at or adjacent to the attached property by beat of drum or other customary mode, and a copy of the order shall be affixed at a conspicuous part of the court-house. Learned counsel then invited our attention to Order XXI, Rule 64, C.P.C. and pointed out that it speaks of sale of that property only which is attached, Learned counsel stressed that cumulative effect of Rules 54 and 64 of Order XXI, C.P.C. is that sale of any property which is not attached in accordance with law shall be a nullity. Learned counsel contended that when the objection raised against the sale is that it is a nullity, it cannot fall under Order XXI, Rule 90 C.P.C.
8. It is true that, when the sale is attacked on the ground that it is a nullity on account of non-compliance of any mandatory provision of law, it will not be covered by Order XXI, Rule 90 C.P.C. We do not however, accept that non-compliance of the provision contained in Order XXI, Rule 54, C.P.C. which prescribes certain formalities regarding attachment of property, can render a sale a nullity. The matter came up for consideration before a Division Bench of this Court in the case of Haji Rahim Bux & Sons v. Firm Samiullah and Sons : AIR1963All320 and, after making a resume' of the decisions of all the High Courts in India, this court held that absence of attachment of property does not render the sale to be a nullity and that it is only a material irregularity which can be taken into consideration under Order XXI, Rule 90 of the Code of Civil Procedure. As would also appear on a persual of this case, the same view was expressed by the High Courts of Bombay, Calcutta, Madras, Nag-pur and Patna in various decisions that came up before them. Since a reference of those decisions already finds place in the aforesaid decision of this court, it is not necessary for us to mention them separately in this judgment.
9. Learned Counsel for the appellants invited our attention to a Full Bench decision of this court in the case of Mahadeo Dubey v. Bhola Nath (1883) ILR 5 All 86 (FB) in support of his contention that absence of attachment renders the sale null and void. Learned counsel urged that this being a Full Bench decision should still hold the field. We, however, find that the Full Bench decision relied upon by the learned counsel for the appellants has been considered and distinguished in the case of Haji Rahim Bux & Sons v. Firm Samiullah and Sons, : AIR1963All320 (supra). As pointed out by the Division Bench of this Court (in Para 21 at page 326), the Full Bench in the case of Mahadeo Dubey v. Bhola Nath was dealing with the old code of Civil Procedure of 1882 under which attachment of property was a condition precedent for sale. The Code of Civil Procedure of 1882 did not conceive of a sale of immoveable property taking place without the property having first being attached. This is not so under the present Code. A perusal of Section 51 Clause (b) of the present Code of Civil Procedure would show that execution of the decree can now be made by attachment and sale' or 'by sale without attachment' of any property. We are therefore, of the view that the rule laid down in the Full Bench decision of this court in the case of Mahadeo Dubey v. Bhola Nath Dichit (supra) does not hold the field and cannot prevail over the decision of this Court in the case of Haji Rahim Bux & sons v. Firm Samiullah and Sons (supra).
10. Taking up the other grounds, taken up by the appellants in his application, it was said in paragraphs 4 and 5 that the property was sold for a very low price. Now inadequacy of price has always been accepted to be a ground for assailing the sale under Order XXI, Rule 90, C.P.C., for, it relates to the conduct of sale. In Para 6 of the application it is said that the sale was held despite the fact that sufficient number of bidders had not assembled on account of the fact that the proclamation of sale was not done in a proper manner. This is an allegation connected with the publishing of the sale and the conduct thereof and, therefore, should fall under Order XXI, Rule 90 C.P.C. In para 7 it is said that the Amin did not conduct the sale in an honest and bona fide manner, and in Para 8 it is said that the sale should not have been done in one lot. Obviously both these grounds also fall under Order XXI, Rule 90. C.P.C. In para 9 it is said that the building had a spacious underground vault which was full of iron and wooden materials and that the value thereof was not taken into account, nor was it shown in the sale proclamation. This again is an allegation which refers to publishing of the sale and conduct thereof. This should also therefore fall under Order XXI, Rule 90, C.P.C. The last ground of attack against the sale was that the building adjoins P.W.D. road and was situate in Civil Lines and that this circumstance was not taken into consideration. This again would be a ground either relating to the publishing of the sale or the conduct thereof.
11. The above are the only grounds taken in the application dated 4-2-1976. We have, therefore, no hesitation in concluding that the application dated 4-2-1976 was one under Order XXI, Rule 90, C.P.C. and not under Section 47, C.P.C
12. Learned counsel for the appellants pointed out that the prayer contained in the application dated 4-2-1976 also asked for the attachment of the property being set aside. Learned counsel urged that this relief could not be granted under Order XXI, Rule 90, C.P.C. In our opinion however the mere fact that in the clause containing the relief it was added by the appellants that the attachment of the property be also set aside could not take the application out of the ambit of Order XXI. Rule 90, C.P.C.
13. Learned counsel for the appellants also urged that it would cause a great hardship to the appellant if he loses his property for the technical reason that he had earlier moved an application which fell under Order XXI. Rule 90, C.P.C. even though the application was believed to be and described by the appellants as one under Section 47, C.P.C. Learned counsel vehemently urged that the law should be interpreted so as to further the interest of justice and not to frustrate it. We regret our inability to accept this argument. The function of the Court is to administer the law and not to legislate it. If any provision of law is clear beyond all ambiguity, it is to be implemented regardless of the fact that it causes, hardship to a particular party. In the instant case, it is settled by a decision of the Supreme Court that if any party has first made an application under Order XXI, Rule 90, C.P.C. and he then makes an application under Order XXI, rule 89, C. P. C. the latter application can be deemed to have been made only when the earlier application has been rejected or disposed of. It is further the mandate of law that an application under Order XXI, rule 89 of the Code of Civil Procedure should be made within a period of 30 days from the date of the sale. As indicated earlier, the sale in the instant case took place on 8th January, 1976. Though the application under Order XXI, rule 89, C. P. C. was moved by the appellants on 6th February, 1976, i.e. within the period of limitation, it could not be deemed to have been made till 17th April, 1976, as the application under Order XXI, rule 90, C. P. C. was got rejected only on that date. By, that time the application under Order XXI, Rule 89 was clearly barred by time and, therefore, had to be rejected. In fact by enacting the provision contained in Order XXI, Rule 89, C.P.C. the legislature granted a concession to the person claiming the property sold in execution of a decree, to get back the property after depositing in court, for payment to the purchaser, a sum equal to 5% of the purchase money, and for payment to the decree-holder the amount specified in the sale proclamation. The legislature, however, clearly enjoined that, if the person claiming the property wanted to avail of this concession, he shall not have the opportunity to simultaneously assail the sale on the grounds of material irregularity and fraud. We are afraid, we cannot give a different meaning to Order XXI, Rule 89, C.P.C.
14. The appeal accordingly fails and is hereby dismissed with costs.