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Durga Prasad Vs. Brij Behari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 789 of 1980
Judge
Reported inAIR1981All172
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 - Order 5, Rules 1 and 2 - Order 21, Rules 11, 66, 66(2), 90 and 110; Allahabad Code of Civil Procedure (CPC) (Amendment) Act
AppellantDurga Prasad
RespondentBrij Behari Lal and ors.
Advocates:S.P. Srivastava, Adv.
DispositionAppeal dismissed
Excerpt:
.....in the notice. (ii) section141, order 5 rule 1 and 2 of code of civil procedure, 1908 - copy of sale proclamation along with notice not served - held, section 141 does not apply. (iii) order 21 rule 90 of code of civil procedure, 1908 - property undervalued in sale proclamation - judgment debtor not raising question before execution of sale - question not subsequently taken afterwards. (iii) verification - order 21 rule 11 code of civil procedure, 1908 - execution application not properly verified - decree holder verified and swore contents to be true - irregularity causing no substantial prejudice to the appellant. - - srivastava that the auction sale is bad because of want of notice under order xxi, rule 66 of the code. 16,500/-,is bad for two reasons. i am satisfied that auction,..........and from that date to 20-4-1976. on 20-4-1976 the court directed that an amendment be made in the sale proclamation and reference to the encumbrance on the property be deleted. the order is in the handwriting of the court on 22-c which runs as under:--'no objection filed. hence allowed. necessary amendment be made in the sale proclamation. issue a writ of sale by auction to amin fixing 25-9-1976 for auction and 1-6-76 for its return. put up on 1-6-76 for further orders. issue sale proclamation accordingly.'3. on 1-5-1976 an application 24-c was filed by one madan mohan kalani who claimed that the property had been mortgaged to him by the judgment-debtor and that rs. 5,000/- were due to him towards the principal of the mortgage amount and rs. 9,800/- towards interest coming to in all.....
Judgment:

B.N. Sapru, J.

1. This is a judgment-debtor's appeal against the dismissal of a petition filed by him under Order XXI Rule 90 of the Code. The decree-holders had obtained a money decree for Rupees 16,800/- along with interest at the rate of six per cent per annum against Durga Prasad the judgment-debtor.

2. On 5-5-1975 the decree-holders filed an execution application and on this application the court on 14-5-1975 issued notice under Order XXI, Rule 54 of the Code fixing 19-7-1975. On 19-7-1975 it was found that the notice was not served and thereafter on 19-7-1975 the court directed the decree-holders to take steps within seven days to serve notice under Order XXI, Rule 66 of the Code. On 1-10-1975 the decree-holders having taken the steps the notice was ordered to be issued for 6-12-1975. On 6-12-1975 the court found that the notice had been duly served: No objection having been filed the court directed that the steps be taken to sell the property by auction. It was then discovered that encumbrances had not been mentioned in the notice served on the judgment-debtor and so the court directed a fresh notice under Order XXI, Rule 66 of the Code to be served on the judgment-debtor who was directed to file his objection by 27-2-1976. The court on that date fixed 1-3-1976 for settlement of the terms of proclamation for sale. Before the date fixed on 27-2-1976 an objection paper No. 22-C was filed by the judgment-debtor in which the judgment-debtor stated that there was no encumbrance on the property. On 1-3-1976 the court held the notice to be sufficiently served on the judgment-debtor. The decree-holders were required to take steps in execution for getting the auction sale done. On the judgment-debtor's application 22-C the decree-holders were given time till 13-3-1976 which was the date fixed. The case was adjourned to 25-3-1976 and from that date to 20-4-1976. On 20-4-1976 the court directed that an amendment be made in the sale proclamation and reference to the encumbrance on the property be deleted. The order is in the handwriting of the court on 22-C which runs as under:--

'No objection filed. Hence allowed. Necessary amendment be made in the sale proclamation. Issue a writ of sale by auction to Amin fixing 25-9-1976 for auction and 1-6-76 for its return. Put up on 1-6-76 for further orders. Issue sale proclamation accordingly.'

3. On 1-5-1976 an application 24-C was filed by one Madan Mohan Kalani who claimed that the property had been mortgaged to him by the judgment-debtor and that Rs. 5,000/- were due to him towards the principal of the mortgage amount and Rs. 9,800/- towards interest coming to in all Rupees 14,800/- and that this amount was a first charge on the mortgaged property which was being sold. It was prayed in this application that before the bids were started, this charge should be declared. This application was taken upon 27-5-1976 and the court passed an order that the decree-holders be informed. As no copy of the mortgage deed had been filed, the prayer contained in the application was rejected. It is necessary to mention here that on 3-9-1976 another application 32-C was filed by Madan Mohan Kalani with a similar prayer and this time it was accompanied by the copy of the mortgage deed paper No. 31-C. On the application the court passed the order 'File' but the order sheet shows that the application was to be kept on the file and was to be put up when the matter was to be taken up by the court at the time of sale. It is also necessary to mention here that the decree-holders sought the sale of two houses No. 430 and 1259. By application 38-C it was prayed that the house No. 1259 be not sold and that only house No. 430 be sold. This application was allowed and the court ordered that the auction sale be held on 15-9-1977. It directed that the sale proclamation be issued and a warrant for sale be also issued. At this stage on 10-9-1977 the judgment-debtor made an application 42-C in which he prayed that the sale be postponed for three months so that he could negotiate the sale of the house by private sale. In the application it was also stated that if within the time stipulated in the application the decretal amount was not deposited the sale could proceed without a fresh proclamation of sale. The court took up this application on 13-9-1977 and the judgment-debtor was granted time till 17-10-1977 to pay the decretal amount. It further directed that the sale shall remain withdrawn meanwhile. On an application of the judgment-debtor praying for a further time of four months to sell the house in question by private negotiation so that he could pay the decretal amount the court passed the following order on 29-10-1977:---

'Allowed time till 5-12-1977 to sell the attached property and deposit the decretal sum failing which the execution shall proceed.'

4. The amount not having been deposited as ordered the court on 15-12- 1977 passed an order in the following words:--

'Execution shall proceed, Issue Parwana for sale.'

5. The matter was taken up on 27-1-1978 on which date the court directed that the warrant of sale should be issued fixing 6-3-1978 as the date of auction sale. On 1-3-1978 an application was moved by Madan Mohan Kalani stating that Rs. 5,000/- towards principal and Rs. 11,500/- towards interest in all making Rs. 16,500 was due to him under the mortgage of the house proposed to be sold by the judgment-debtor. It was prayed that at the time of auction sale this fact should be mentioned. The court thereupon passed an order on 3-3-1978 in the following words:--

'The sale may be held subject to mortgage money together with interest.'

6. The sale took place on 6-3-1978. At that time the Amin mentioned that there was a charge of Rs. 16,500/-under the mortgage on the property sold.

7. Sri S.P. Srivastava appearing on behalf of the judgment-debtor appellant has urged several grounds for holding the auction sale to be invalid. He has urged that in fact there was no notice of the proposed sale as required by Order XXI, Rule 66 of the Code and as such the sale is invalid. His argument is that the notice issued to the appellant under Order XXI, Rule 66 which had been held to be duly served on the judgment-debtor was itself withdrawn by the court and it directed a fresh notice to issue to the judgment debtor on 4-2-1976 for setting the terms of sale. This notice directed that the matter of settlement of the terms of sale would be taken up on 1-3-1976. The argument of Sri. S.P. Srivastava is that the previous notice which was served on the appellant was, to use his word 'erased' when a fresh notice was issued because the encumbrance on the property had not been mentioned in the first notice. In the second notice the encumbrance on the property was mentioned. This was in effect not a fresh notice but only in continuation of the previous notice to enable the judgment-debtor to file an objection, if necessary. In fact, on 27-2-1976 the objection 22-C was filed in which it was stated that there was no encumbrance on the property and an order was made that the proclamation of sale should not mention any encumbrance on the property. I am not, therefore, prepared to accept the argument of Sri. S.P. Srivastava that the auction sale is bad because of want of notice under Order XXI, Rule 66 of the Code.

8. Another argument connected with Order XXI, Rule 66 of the Code advanced on behalf of the appellant is that the terms of the proclamation of sale were not communicated to the appellant when the notice under Order XXI. Rule 65 of the Code was served on him. The counsel for the respondents in reply urges that the Form in which the notice under Order XXI, Rule 66 of the Code is to be issued, is given in Form No. 28 of the Forms prescribed under the Code. He points out that such particulars are not required to be given and that the notice was in accordance with the Form No. 28. In this connection he referred to a decision of Patna High Court in the case of Kishunjee Rai v. Jainarain Prasad Thakur : AIR1972Pat61 where an identical argument was raised and rejected by the Court. It was observed that 'the learned counsel for the petitioners has referred to Order XXI, Rule 66 (2) of the Code and has argued that the notice to the judgment debtor has to include all the necessary informations required under Order XXI, Rule 66 of the Code including encumbrances on the property. For the purpose the learned counsel has relied upon a case Marudanayagam Pillai v. Manickavasakam Chettiar . I do not think that this contention is valid at all. According to Order XXI, Rule 66, the sale proclamation has to contain certain information required under the law. This Rule cannot be interpreted to mean that the notice given to the judgment-debtor for drawing up the sale proclamation must contain the details mentioned under Rule 66 (2) of the Order XXI of the Code' I am in respectful agreement with the above view, Order XXI, Rule 66 (2) of the Code merely provides that the proclamation for sale shall be drawn up after notice to the decree-holder and the judgment-debtor. The requirement of the proclamation are specified in Sub-rule (2). It is only after the notice has been served that the proclamation is drawn up. There is no requirement that the notice should contain the particulars mentioned in Sub-rule (2) of Rule 66 of Order XXI of the Code.

9. It is argued by Sri S.P. Srivastava that the requirement of Order XXI, Rule 66 of the Code read with Rule 110 ofthe Code were not complied with inasmuch as no sale proclamation was drawn up in the handwriting of the court. This argument cannot be accepted for the simple reason that on 29-4-1976 the court in its own handwriting passed an order that necessary amendment be made in the sale proclamation and further ordered to issue the sale proclamation accordingly. A draft of the sale proclamation was before the court and this was substantial compliance with the provisions of Rule 110 of Order XXI of the Code though it may not be a literal compliance.

10. Another argument of Sri S. P. Srivastava is that by virtue of provisions of Section 141 of the Code, the provisions governing suit contained in Order V, Rules 1 and 2 are applicable to execution applications. On this basis he urges that along with the notice under Order XXI, Rule 66 of the Code issued to the judgment debtor, a copy of sale proclamation should have been annexed. This argument cannot be accepted as it had already been held that Section 141 does not apply to the proceedings in execution. See Dokku Bhushayya v. Katragadda Ramakrishnayya : [1963]2SCR499 and Moradhwaj v. Bhudar Das : AIR1955All353 .

11. It is then urged that the property was not valued in the sale proclamation and the under-valuation caused substantial loss to the appellant. It is submitted that the valuation shown in the sale proclamation was Rs. 10,000/-whereas the property was worth Rupees 50,000/- or Rs. 60,000/-. This argument cannot be accepted for the simple reason that it was open to the judgment debtor to raise the question of valuation before the execution court when the sale proclamation was drawn up. The judgment debtor not having done so, was not entitled to raise it subsequently. In this connection the proviso to Rule 90 of Order XXI added by the Allahabad High Court is clear. It provides that any objection which could have been taken before the sale proclamation was drawn up, cannot be raised subsequently.

12. It is next argued that the court acted without jurisdiction in directing that the encumbrance of Madan Mohan Kalani should be shown in the sale proclamation particularly when thecourt had by its order dated 20-4-1976 directed that a reference to the encumbrance be deleted from the sale proclamation. The subsequent order dated 3-3-1978 by which the court ordered the sale proclamation be amended and a reference to the encumbrance be made for Rs. 16,500/-, is bad for two reasons. In the first place, it is submitted that the order could not be amended. In the recital of facts given earlier, it was pointed out that on 3-9-1976 an application 32-C was filed by Madan Mohan Kalani accompanied with a copy of the mortgage deed and the court had ordered that it would be taken up at the time of sale. When the order dated 20-4-1976 was made Madan Mohan Kalani had not come into picture at all. Thus, any order of the court made at the time when Madan Mohan Kalani was not in the picture, cannot operate as res judicata as far as he is concerned. In the second place, the order dated 3-3-1978 is attacked on the ground that it was made behind the back of the appellant. The appellant knew or should have known that the application of Madan Mohan Kalani was pending and would be taken at the time of sale proclamation being issued. Another factor is that the appellant himself admits that the mortgage amount stood at Rupees 16,500/-. At the most the order dated 3-3-1978 directing that a reference to the mortgage be made in the sale proclamation was an irregularity. The so-called irregularity had not in any way prejudiced the judgment debtor.

13. It is then urged that the execution application was not properly verified as there were two paragraphs in the application numbered as Kha 1 and Kha 2, whereas the paragraph verified is kha. It is obvious that the verification I when the decree-holder verified the execution application was meant to cover both the paragraphs Kha 1 and Kha 2 when they swore that the contents of paragraph Kha are true. At the most this is an irregularity and caused no substantial prejudice to the appellant.

14. There is another factor that on 1-10-1975 the decree-holder filed paper No. 14-C wherein the valuation was given at 10,000/-.

15. It is lastly urged that the entire sale transaction was sham. The case of the judgment-debtor is that the Amin did come to the place where the property to be sold was situated but he did not in fact auction the sale. In support of his case, the judgment-debtor examined himself as P.W. 1, P.W. 2 Moti Lal, P.W. 3 Mahabir Prasad, P.W. 4 Munna Lal and P.W. 5 Rameshwar. The auction purchaser produced A.P.W. 1 Radhey Shyam, the Amin who conducted the auction, A.P.W. 2 Sarju Prasad. A.P.W. 3 Trilok Nath Tandon and A.P.W. 4 Anand Chand Raidani. The judgment-debtor's witnesses admitted that the Amin came to the spot and also informed the people gathered there that there was a mortgage on the house. They claimed that the Amin went inside the shop and did not invite any bid. They further stated that they kept waiting but when the auction was not conducted they went away. There was no Chabutara in existence when the sale was conducted by the Amin. According to the auction purchaser's witnesses, the Amin sat at the Chabutara and conducted the sale. There is a notice paper No. 49-C on record. This notice was given in connection with the removal of the Chabutara. The notice is dated 17-6-1978. It is, thus, clear that the Chabutara existed on 6-3-1978 when the sale was conducted. This supports the case of the auction pruchaser.

16. There is the statement of Amin A. P.W. 1 Radhey Shyam who stated that he conducted the auction and received the bids. He is a Government servant and there is no reason to doubt his testimony.

17. It is also not easily understood that as to why after announcing that an auction was being held and even announcing that the property was encumbered, the Amin would not continue with the sale. I am satisfied that auction, in fact, was conducted by the Amin on 6-3-1978.

18. In the result, I find no merit in this appeal. The appeal is accordingly dismissed with costs. Stay order dated 8-12-1980 is vacated.


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