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Kishan Lal Vs. Har Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 3820 of 1958
Judge
Reported inAIR1963All319
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 90
AppellantKishan Lal
RespondentHar Prasad
Appellant AdvocateD. Sanyal and ;K.C. Saxena, Advs.
Respondent AdvocateM.P. Mehrotra, Adv.
Excerpt:
limitation - legality of sale - section 47 and order 21 rule 90 of code of civil procedure, 1908 - sale in contravention or in ignorance of an order of stay is null and void - the objection is covered under section 47 and order 21 rule 90. - - , as well as the ground relating to the nullity of sale, could such an objection be treated to be one under section 47, c. 3: we would not answer this question, because, like question no......eye of law at all. a sale attended with an irregularity has to be set aside; whereas in a null and void sale only a declaration to that effect may be necessary, if at all, order 21 rule 90 does not deal at an wilh a sale that is null and void or with a declaration that it is so. though the respondent headed his application as one under or. 21 r. 90, we should consider the nature and substance of the application and not the heading; if it was really an application under section 47 we must deal with it on that basis and not as an application under order 21 rule 90 merely because it purported to be one under it. the appellant relies on jatindra mohan v. mahipat nayak : air1948cal203 . there the objection of the jugdment-debtor was that the sale was not valid and that it was attended with a.....
Judgment:

Desai, C.J.

1. In execution of a decree obtained by the appellant against the respondent certain property of the respondent was put to sale. On the date fixed for the sale the executing Court passed an order staying the sale. A copy of the order was taken by the respondent to the Qurq Amin conducting the saie, and it is alleged that after reading it he returned it to the respondent and proceeded to sell the property. There were bidders including the appellant, who offered Rs. 1000/- and the sale was concluded ig his, favour. More than a month after the sale was held, me respondent filed a petition in the executing Court, the petition expressly purported to be under Order 21 Rule 90, C.P.C. He contended in the petition that the sale was illegal, that no proclamation was made at all with tne result that very few bidders were present and the property worth Rs. 30,000/- was sold to the appellant for Rs. 1000/-, that only his relations and friends were present as bidders, that the sale was held in spite of the stay order issued by the Court and communicated to the Qurq Amin and was consequently null and void and that the sale ought to be set aside on account of material irregularity.

2. The executing Court treated the petition as one under Order 21 Rule 90, the period of limitation tor which is admittedly thirty days, vide Article 168 of the Limitation Act, and dismissed it on this ground. The respondent filed an appeal which was allowed, by the District Judge, who thought that if the objection raised a question that the sale was null and void, It was one under Section 47, C.P.C. for which the period of limitation may be three years under Article 182 of the Limitation Act. It, therefore, remanded the case to the executing Court for

'deciding the question of the Validity or the voidness of the sale and also for deciding the question whether the objection relating to the sale being void was within time'. Against that remand order a second appeal was filed which was heard by our brother Mithan Lal. Our brother has referred the following three questions to a larger Bench:

'1. Whether an auction sale held in contravention of or in ignorance of the order of stay passed by the executing Court is null and void?

(2) Whether an objection by a judgment-debtor agamst such a sale would be an objection under Section 47 C.P.C. and if the objection is a composite one containing grounds mentioned in Order 21, Rule 90, C.P.C., as well as the ground relating to the nullity of sale, could such an objection be treated to be one under Section 47, C.P.C.?

(3) In either case or in both cases, what will be tne period of limitation? Will the limitation be governed by Article 166 or Article 181 of the Limitation Act or, as observed in the case of Hiralal v. Mst. Champa : AIR1955All226 , there is no period of limitation and the Court is bound to set right the wrong at any time?'

3. Question No. 1: This question is pending before the executing Court itself. The appellate Court by its order in appeal has not given any finding on it. it is stated to the remand order that the case was remanded for deciding the question of validity or the voidness of the sale, Thus it Is for the 'executing Court to decide whether the sale was void on the grounds alleged by the respondent in his objection. Since there was no decision un the question given by the appellate Court, the question did not arise before the learned single Judge and we cannot answer it. It will be for the executing court to answer it, the objection is still pending before it.

4. Question No. 2: Though the objection purposed to be under Order 21 Rule 90, the contention contained in it that the sale was null and void, was a question relating to execution, discharge or satisfaction of the decree out not covered by Order 21 Rule 90. Only the question relating to a material irregularity in conducting the sale is a question referred to in Order 21 Rule 90; any other question would come within the four corners of Section 47, C.p.c. We respectfully agree with the view expressed in Harindra Nath v. Bhola Nath : AIR1937All407 which was followed in Krishna Kumar v. Brijpasi Lal : AIR1952All361 . If a judgment-debtor seeks to set aside the sale on the ground of an irregularity, his application is covered by Rule 90, but if he seeks a declaration that the sale is null and void, he gets relief under Section 47. A sale attended with an irregularity is quite distinct from a sale that is null and void, the former exists and is in force so long as it is not set aside, whereas the latter does not exist in the eye of law at all. A sale attended with an irregularity has to be set aside; whereas in a null and void sale only a declaration to that effect may be necessary, if at all, Order 21 Rule 90 does not deal at an wilh a sale that is null and void or with a declaration that it is so. Though the respondent headed his application as one under Or. 21 R. 90, we should consider the nature and substance of the application and not the heading; if it was really an application under Section 47 we must deal with it on that basis and not as an application under Order 21 Rule 90 merely because it purported to Be one under it. The appellant relies on Jatindra Mohan v. Mahipat Nayak : AIR1948Cal203 . There the objection of the jugdment-debtor was that the sale was not valid and that it was attended with a material irregularity inasmuch as it was held after the date fixed for it has expired.

5. If a judgment-debtor, as the respondent in the present case, pleads that a sale held in contravention or in ignorance of an order of stay passed by the executing Court is null and void, it is an objection covered By Section 47 and will be decided by the executing Court as such. It will be for the executing Court to decide Whether the sale is rendered null and void on that ground; whether it holds that it is rendered null and void or that it is not rendered null and void, its order would be one under Section 47, C.P.C. It is only when a Judgment-debtor pleads in his objection that the sale should be set aside on account of a material irregularity that the objection will be dealt with under Order 21 Rule 90 and will be governed by the law applicable to it. Whether the law applicable to an objection under Section 47 or that applicable to an objection under Order 21 Rule 90 will govern a particular objection depends upon its nature and substance and tne contention contained in it. The correctness or sounaness of the contention contained in it is wholly irrelevant. At the initial stage the executing Court can ascertain tne law applicable to the objection only by looking at tne contention contained in it; it will be premature at that stage for it to decide whether the contention has any substance in it or not. In the present case, the contention, of the respondent that the sale was rendered 'null and void on account of its being held in contravention, or in ignorance, of the order of stay, might not be found to be sound ultimately, but the executing Court was bound, to treat the objection as one for a declaration tnat the sale was null and void, i.e., as an objection under Section 47, C. P. C. and apply to it the law applicable to such objections.

6. The respondent also said in his objection that there were irregularities such as that a proclamation was not made; this part of his objection could be dealt with as an objection under Order 21 Rule 90. Where an objection contains two parts one against the very existence of tne sale and the other against its legality -- there is no reason why it should not be dealt with partly as an objection under Section 47 and partly as an objection under Order 21 Rule 90. The part containing the plea that the sale was null and void may be dealt with as an objection under Section 47 and the other part complaining of a material irregularity, may be treated as an' objection under Order 21 Rule 90.

7. We answer the question accordingly.

8. Question No. 3: We would not answer this question, because, like question No. 1, it is also pending with the executing Court. Since there is no decision on this question by the Courts below it does not arise in the second appeal.

9. Place the case before our brother Mithan Lalwith our answers.


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