Skip to content


Adit Prasad Vs. Sheo Mangal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4785 of 1961
Judge
Reported inAIR1967All258
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 84 and 89
AppellantAdit Prasad
RespondentSheo Mangal
Appellant AdvocateN.D. Ojha, Adv.
Respondent AdvocateK.B. Mathur, Adv.
DispositionAppeal dismissed
Excerpt:
civil - applicability - order 21 rule 89 and section 47 of code of civil procedure, 1908 - decree holder sole bidder at auction sale - failed to deposit accordance with order 21 rule 84 - sale was not confirmed - meanwhile judgment debtor deposited decree amount - sale confirmed subsequently - judgment debtor challenged its validity under section 47 - whether objection was maintainable under provision of act or not - held, objection maintainable under section 47 and not under order 21 rule 89. - - the decretal amount as well as execution costs, in the execution court. it could have as well refused to accept the bid on the ground that there were not enough bidders at the auction. by the deposit of the decretal amount, before the sale had been completed, the decrees stood satisfied by the..........in dispute was put up for auction. the auction was held on 29th april 1960 and at the auction the decree-holder was the highest bidder. he purchased the property for rs. 1500/-.2. the officer holding the auction finding that there was only one bidder did not accept the bid of the decree-holder but left it for the court to accept it or not. on 2nd may 1960 the judgment-debtor deposited the entire amount due under the decree i.e. the decretal amount as well as execution costs, in the execution court. the same day the file was put up before the execution court with respect to the auction sale the court did not pass any specific order accepting the bid of the decree-holder, but made an order that the file be put up after a month for confirmation of the sale.3. it is worthy of note that by.....
Judgment:

Satish Chandra, J.

1. The decree-holder has filed this appeal. He obtained a decree no. 338 of 1950 for Rs. 513. In due course he put tt in execution for a total sum of Rs. 716.34 including costs. The property in dispute was put up for auction. The auction was held on 29th April 1960 and at the auction the decree-holder was the highest bidder. He purchased the property for Rs. 1500/-.

2. The officer holding the auction finding that there was only one bidder did not accept the bid of the decree-holder but left it for the Court to accept it or not. On 2nd May 1960 the judgment-debtor deposited the entire amount due under the decree i.e. the decretal amount as well as execution costs, in the execution Court. The same day the file was put up before the execution Court with respect to the auction Sale The Court did not pass any specific order accepting the bid of the decree-holder, but made an order that the file be put up after a month for confirmation of the sale.

3. It is worthy of note that by 2nd May 1960 the decree-holder had not made any payment towards his bid of Rs. 1500/- He had neither filed the receipt for the decretal amount nor paid the 25 per cent of the bid All this was done on 11th May 1960. In due course the sale was confirmed on 8th July 1960. The judgment-debtor then woke up, and filed an objection under Section 47 C. P. C. on 22nd July 1960.

4. Both the courts have upheld the objection and have set aside the sale. Hence this appeal by the decree-holder.

5. It is urged for the appellant that the objection was not maintainable as, in substance, the objection was under Order 21 Rule 89 C. P. C. and as the judgment-debtor had not deposited the relevant five per cent of the auction money the objection was not competent. The learned counsel has urged that the objection cannot be treated as one under Section 47 C. P. C. as it was filed after the confirmation of the sale.

6. On 2nd May 1960 when the judgment-debtor deposited the entire decretal amount the sale had not been completed. The decree-holder's bid had not been accepted till then by any specific order of the execution Court. The order of the execution Court that the file may be put up after a month for confirmation of sale does not necessarily mean that the attention of the Court was invited to the fact that the officer conducting the sale had not accepted the bid and had left the matter open for consideration by the Court. If the Court's attention was invited to this fact it is reasonable to expect that the Court would have passed some order after considering the facts. It could have as well refused to accept the bid on the ground that there were not enough bidders at the auction. I am, therefore, not inclined to agree with the submission that on 2nd May 1960 the Court had accepted the bid.

7. Another reason for which I am inclined to take this view is that the decree-holder had not complied with the requirements of Order 21 Rule 84 C. P. C. He had neither filed any receipt for the decretal amount nor deposited the 25 per cent of the bid; the bid being in excess of the decretal amount. The decree-holder had, therefore, not done his duty by 2nd May 1960. Under the circumstances it is difficult to hold that the order directing that the file be put up after a month amounts to an acceptance of the decree-holder's bid on that date.

8. The decree-holder's bid not having been accepted the sale cannot be held to have been completed on 2nd May 1960. An objection under Order 21 Rule 89 C. p. C. can be filed only after the property has been sold i.e. when the auction is complete. The auction not being complete in this case, the judgment-debtor need not have filed an objection under Order 21 Rule 89 C p. C. By the deposit of the decretal amount, before the sale had been completed, the decrees stood satisfied by the appellant. The sale thereafter was not in execution or discharge or the satisfaction of the decree and hence was without jurisdiction. The decree having been satisfied, the Court had no jurisdiction to execute it any further or sell any property in execution proceedings.

The sale which became complete after 2nd May 1960 and which was confirmed on the 8th July 1960 was in the eye of law, void. An objection that an execution Sale is void, goes to the root of the matter. It relates to the execution, satisfaction or discharge of the decree and falls within Section 47 C. P. C. Such an objection is not barred by Order 21 rule 92, C P C or by any other provision of law.

9. Learned counsel has relied upon Kabul Chand v. Ram Parshad. AIR 1951 Pepsu 163. In that case the auction purchaser was a stranger. It was held that a stranger auction-purchaser was not a party within the meaning of Section 47 C. P. C. Hence an objection for confirmation of the sale will not fall under Section 47 C. P. C. This case has become absolute. By Act 66 of 1956 Section 47 of the Code ofCivil Procedure was amended. An Explanation was added to Section 47 C. P. C. making the auction purchaser a party to the suit.

10. Reliance has been placed on Pokhar Singh v. Tula Ram : AIR1935All1016 , for the proposition that an objection under Section 47 C. P. C. cannot be taken after the decree has been satisfied and the Court has become functus officio. In this case the Court has not become functus officio. Possession was not delivered, and sale certificate had not been issued. Till these things are done it cannot (SIC) said that the Court has become functus officio. In my opinion the objection under Section 47 C. P. C. was maintainable.

11. The learned counsel next urged that even if the sale was set aside, the judgment-debtor should have been directed to deposit the five per cent mentioned under Order 21 Rule 89 C. P. C. This submission also cannot be accepted. The objection in the instant case was not under Order 21 Rule 89 C. P. C. The conditions of that Rule will, therefore, not be applicable.

12. The appeal fails and is dismissedwith costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //