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Munni Lal Vs. Smt. Sona and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 10164 of 1979
Judge
Reported inAIR1982All29
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152 - Order 34, Rules 5 and 6 - Order 21, Rules 89 and 92; Constitution of India - Article 226
AppellantMunni Lal
RespondentSmt. Sona and ors.
Appellant AdvocateA.N. Bhargava, Adv.
Respondent AdvocateSankatha Rai, Adv.
DispositionPetition allowed
Excerpt:
(i) civil - validity of decree wrongly prepared due to clerical error - sections 151 and 152 and order 34 rules 5 and 6 of code of civil procedure, 1908 - petitioner bought property in auction - it was executed by a decree for sale of property for recovery of debt existing even after sale of mortgaged property - application for the said decree contained clerical error - instead of order 34 rule 6 it was mentioned order 34 rule 5 - mentioned correctly in prayer but error crept in at the end - decree granted in favour also contained the said error - judgment debtor who is the aggrieved party filed objection under section 47 of code of civil procedure to set aside the execution on the ground of error - high court remanded it to executing court for correction of error - application was.....orderk.n. misra, j. 1. this writ petition, under article 226 of the constitution of india, is directed against the order dated 14-9-1977, contained in ann. '3' to the writ petition, passed by the district judge, mirzapur, opposite party no. 4. by which he allowed the appeal and set aside the auction sale, held on 13th of may. 1969 wherein the petitioners had purchased plot no. 44 area 1 bigha 1 biswa situated in village tarkapur, pargana kantit, tahsil and district mirzapur.2. briefly stated the facts of the case, giving rise to this writ petition, are that the opp. parties nos. 2 and 3, namely, shiv shanker and smt. karora, had filed a suit no. 232 of 1956, against the deceased opp. party no. 1, smt. sona alias sonia, for the recovery of certain money on the basis of a simple mortgage.....
Judgment:
ORDER

K.N. Misra, J.

1. This writ petition, under Article 226 of the Constitution of India, is directed against the order dated 14-9-1977, contained in Ann. '3' to the writ petition, passed by the District Judge, Mirzapur, opposite party No. 4. by which he allowed the appeal and set aside the auction sale, held on 13th of May. 1969 wherein the petitioners had purchased plot No. 44 area 1 bigha 1 biswa situated in village Tarkapur, Pargana Kantit, tahsil and district Mirzapur.

2. Briefly stated the facts of the case, giving rise to this writ petition, are that the opp. parties Nos. 2 and 3, namely, Shiv Shanker and Smt. Karora, had filed a suit No. 232 of 1956, against the deceased opp. party No. 1, Smt. Sona alias Sonia, for the recovery of certain money on the basis of a simple mortgage deed. The suit was decreed on 25th Apr., 1957and a preliminary decree, under Order 34, Rule 4 C. P. C., was passed and a final decree for the sale of mortgaged property was prepared on 16th May, 1958. That decree was put in execution, but it was not fully satisfied as the entire amount, due under the decree, could not be realised by the sale of the mortgaged property. Thereupon, an application was moved by the decree holder on 23rd of Feb., 66, under Order 34, Rule 6, a copy of which has been annexed as Ann. '1' to the supplementary reminder affidavit. In this application it was averred that a sum of Rs. 2749.75 P. has remained unpaid, which could not be realised by the sale of the mortgaged property; hence a personal decree be passed under Order 34, Rule 6. Although a prayer, in the body of the application, to the effect that a decree be passed under Order 34, Rule 6, was made but, at the end of the application it was mentioned in the prayer that 'a decree be prepared under Order 34, Rule 5, which apparently was mentioned by inadvertence. This application was allowed on 21-9-66 and the decree holder, on 16-8-67, applied for the execution of that decree by sale of the properties other than the mortgaged property and in execution of the decree, plot No. 44 area 1 Bigba 1 Biswa, situated in village Tarkapur, district Mirzapur, was attached on 31st of March, 1969 and it was sold a sum of Rs. 1000/- in auction sale held on 13-5-69.

3. The judgment debtor filed an objection under Section 47 C. P. C., inter alia, on the grounds that the execution cannot proceed against the aforesaid plot in question as the same was not a mortgaged property and the decree, which was prepared, was under Order 34, Rule 5 and not under Order 34, Rule 6; hence the execution application be rejected and the execution should not proceed against the aforesaid plot in question. This application was rejected by the trial court on 25th Jan., 1969. The judgment debtor, aggrieved by the said order, preferred First Appeal No. 64 of 1969 which was allowed by the District Judge, vide its order dated 23rd July, 1969, on the ground that as no decree, as a matter of fact, was prepared under Order 34. Rule 6, hence the decree holder could not proceed against the non-mortgaged property. A Second Execution Appeal No. 1513 of 1969 was, thereupon filed by the decree holder which was allowed by this court vide its judgment and orderdated 4-4-72, a true copy of which is annexed as Ann. '4' to the writ petition. The case was remanded to the executing court with the direction that it be kept pending and the decree holders were afforded opportunity to have the decree rectified by getting the mistake removed if] preparation of the aforesaid decree which was wrongly prepared under Order 34, Rule 5 instead of Order 34. Rule 6.

4. After passing of the aforesaid order, the decree holders moved an application for the correction and rectification of the decree under Sections 151/152 C. P. C. on 18-4-72. This application was allowed by the trial court on 18-5-74- Ann. '1' to the writ petition, is a true copy of the said order. It was observed by the trial court that 'it is obvious from record that the decree-holder had actually intended to apply for preparation of a decree under Order 34, Rule 6 C. P. C., but by a typing mistake the application contained a prayer for preparation of a decree under Order 34, Rule 5 C. P. C. There can be absolutely no doubt that the decree holder wanted to apply for preparation of a decree under Order 34, Rule 6. Even the High Court, by its order dated 4-4-72, had made observations to that effect.' The trial court, on these facts, allowed the application and directed preparation of the proper decree under Order 34. Rule 6 and, in pursuance of that order, the decree under Order 34, Rule 6 was drawn on 3rd July, 76, a true copy of which has been annexed as Ann. '6' to the supplementary affidavit, filed on behalf of the judgment-debtor, opp. party No. 1/1.

5. The opp. party No. 1 filed revision challenging the preparation of the aforesaid decree; but the revision was dismissed by the District Judge. The opp. party No. 1 also came to this court against that order in revision but the same was also dismissed.

6. The opp. party No. 1, thereafter, filed another objection under Section 47 C. P. C. challenging the decree prepared under Order 34. Rule 6 on the ground that the mortgaged property still exists to satisfy the debt and in that decree the rate of interest, which was awarded, was at three per cent, but now six per cent had been awarded in the aforesaid decree dated 3-7-76. The objection was rejected by the trial court and the appeal, filed against that order, was also rejected by the District Judge. The opp. party No. 1 had, thereupon, again approached this court by filing the revision. This revision. No. 849 of 1977, was dismissed by this court, vide its judgment and order dated 27th April, 1978, a true copy of which is annexed as Ann. '5' to the writ petition.

7. Now reverting to the facts, regarding the auction sale of the land, which was attached on 31-3-1969 and sold in auction sale held on 13-5-69 to the petitioner, Munni Lal, who was the highest bidder. The petitioner's bid was accepted and he was declared to be purchaser of the property and he made deposit of twenty five per cent of the amount of purchase money the same day and the remaining amount was deposited by him within fifteen days from the date of sale of the property in the said auction sale.

8. The judgment debtor, oppo. party No. 1, after the said auction sale did not apply for setting aside the auction sale under Order 21, Rule 98 C. P. C. The judgment debtor, however, filed an objection under Section 47 C. P. C. challenging the excitability of the decree and sale of the non-mortgaged plot No. 44 on the ground that the decree was not prepared under Order 34. Rule 6.

9. The judgment debtor, after thedecision by this court in the Execution Second Appeal No. 1531 of 1969, arising out of the earlier proceedings Under Section 47 C. P. C. initiated by him, withdrew, unconditionally on 8-9-73, the money which he had deposited on 3-6-69 for satisfaction of the decree.

10. After about three years of the said withdrawal, the judgment debtor, opp. party No. 1, deposited a sum of Rs. 4,146-70 P. on 30th July, 1976. This amount deposited was not the full amount, as contemplated under Order 21, Rule 89. Later on the opp. party No. 1, after a lapse of about two years, again deposited on 5-7-78 the balance amount of Rs. 1,600/-- This deposit, he made after the decision of this court dated 27-4-78, by which his revision was rejected. After making the aforesaid deposit, in two instalments, the oppo. party No. 1, for the first time, moved an application on 20-9-78 for setting aside the aforesaid auction sale under. Order 21, Rule 89 r/w Sections 57 and 151 C. P. C. No application under Order 21, Rule 89 was earlier filed by the opp. party No. 1 seeking setting aside the auction sale.

11. The said application was rejected by the trial court, vide order dated 28-2-79, contained in Ann. '2' to the writ petition, holding that since the aforesaid deposit was not made within the period of thirty days, as required under Order 21, Rule 92 (2) C. P. C., hence the application deserves to be rejected. The opp. party No. 1, aggrieved by the said order, preferred an appeal which was allowed by the District Judge, Mirzapur, vide its order dated 14-9-79 (Annexure III) holding that 'the non-mortgaged property could not be attached and sold in execution of the decree which, in fact, did not exist under Order 34, Rule 6; hence, the sale, made in execution of the decree, was invalid and could not be sustained on the decree which was prepared, later on, under Order 34, Rule 6 on 3-7-1976. The opp. party No. 4 further observed that 'since the decree, under Order 34. Rule 6 C. P. C. was non-existent when the sale was held, the sale was invalid and ineffective and did not pass title to the purchaser and, on these findings, the appeal was allowed and the auction sale, held on 16-9-69, was set aside and it was further ordered that since the entire decretal amount has been deposited by the judgment-debtor, the execution be struck off in full satisfaction. The auction purchaser shall be entitled to recover poundage deposited by the judgment-debtor.' This order, passed by the opp. party No. 4 has been challenged in this writ petition.

12. I have heard the learned counsel for the parties and have gone through the impugned order and also the averments contained in the writ petition as well as the counter affidavit, rejoinder affidavit and also the supplementary affidavits, filed on behalf of the opp. party No. 1.

13. The learned counsel for the petitioner argued that the lower appellate court has wrongly held that it was not a case of correction of clerical error in the decree, but it was a case of substitution of decree from one under Order 34, Rule 5 with that of under Order 34, Rule 6 and on this erroneous ground erred in holding that the property other than the mortgaged property could not be put to sale. In support of this contention the learned counsel for the petitioner referred to the decision of this court dated 27th April, 1978 passed in aforesaid Civil Revision No. 849 of 1977 (Annexure '5') wherein it was held that:

'the facts indicate that the order directing the preparation of the decree was passed on 23rd Feb., 1966 and thesame became final and it was due tosome clerical mistake that instead of Rule 6, Rule 5 was mentioned. By the order dt. 18-5-74 the court corrected that mistake and rectified that decree and that order being just and correct was not open to interference in revision.'

The learned counsel further pointed out that this court had further observed, while repelling the contention of the judgment debtor regarding the executability of the decree that:

'It would appear, therefore, that the applicant did file certain objection regarding the executability of the decree made under Order 34 Rule 6. Those objections were rejected. I do not think that now it is again open to the applicant to challenge the executability of that decree. Hence the view taken by the court below is absolutely just and correct and there is no scope for any interference'.

The learned counsel for the petitioner 'thus submitted that this order, dated 27th April, 1978, passed by this court in Civil Revision No. 849 of 1977, upholding the executability of the decree would operate as res judicata between the parties and the learned lower appellate court erred in holding that the decree, being not a decree under Order 34, Rule 6, would not be executed against the non mortgaged properties in question.

14. The learned counsel for the petitioner has further contended that the decree-holder had applied for the preparation of the decree on 23-2-1966, a copy of which has been annexed as Annexure '1' to the supplementary affidavit filed by the opp. party No. 1 wherein it was specifically mentioned that a sum of Rs. 2,749-75-p. has remained unpaid and the same cannot be realised without the decree being passed under Order 34, Rule 6, and this application was allowed lay the court after notice of hearing to the judgment debtor on 21-9-1966. But due to clerical error the decree was prepared under Order 34, Rule 5 instead of Order 34, Rule 6 on 17-11-1966. He further contended that the earlier decree, under Order 34, Rule 5, was executed against the mortgaged property and the aforesaid sum of Rs. 2,749-75 p. had remained unpaid, the decree-holder had, therefore, applied for the preparation of a decree under Order 34, Rule 6. Since a decree under Order 34 Rule 5 was already prepared and executed and the aforesaidamount remained unpaid, there was no occasion for preparing another decree under Order 34 Rule 5. It was merely by clerical error Or accidental slip or omission that a decree was wrongly prepared under Order 34, Rule 5 instead of under Order 34, Rule 6. The petitioner, therefore, cannot be made to suffer due to the mistake of the court itself.

15. The learned counsel for the petitioner further argued that when by order dt. 18-5-74 the aforesaid error, in preparation of the decree, was ordered to be corrected and the error in the decree was rectified in pursuance of the order passed by this court dt. 4-4-1972, the amendment made in the decree would relate back to the date of decree, which was wrongly prepared under Order 34, Rule 5 instead of Order 34, Rule 6 on17-11-1966. The learned counsel next contended that the aforesaid order, dated18-5-1974 correcting the decree was validly passed in exercise of the power under Sections 151 and 152 C. P. C. The learned counsel further submit Led that, although the lower appellate court agreed on principles that an amendment made in the decree would relate back to the date of original decree, but he erred in holding that this was not a case of amendment of the decree, but was a case of novation or substitution of the decree. The learned counsel further argued that the petitioner being bona fide auction purchaser is entitled to get the sale confirmed as he had deposited the amount of purchase money within the prescribed period. That auction sale, made in favour of the petitioner would not be affected in any manner even by setting aside novation or substitution of the decree. In support of this contention he placed reliance upon the decision in:--

(1) Zainul-Abdin Khan v. Muhammad Ashghar AH Khan (1887) ILR 10 All 166 (PC)

(2) Janak Rai v. Gurdial Singh : [1967]2SCR77

(3) Mani Lal v. Ganga Pd. : AIR1951All832

16. He further contended that the trial court had rightly observed that 'the judgment debtor had failed to deposit the entire money due within thirty days from the date of auction sale; hence he was not entitled to get the sale set aside under Order 21, Rule 89 C. P. C. He also contended that the time prescribed for making deposit underOrder 21. Rule 89 was thirty days, as prescribed under Article 127 (166-old) of the Limitation Act and the time for making deposit could not be extended, In support of it he placed reliance upon:

(1) Smt. Matrani Devi v. Chhathu Pd. : AIR1972Pat55 .

(2) Rameshwar Misser v. Sureshwar Misser AIR 1917 Pat 344

(3) Vannisami Thevar v. Periayaswami Thevar AIR 1917 Mad 176.

17. In reply, the learned counsel for the judgment debtor argued that since there was no decree in existence under Order 34, Rule 6 C. P. C.; hence the property other than the mortgaged property could not be attached and sold in execution for realising the unpaid amount. The sale, thus, made was invalid and cannot be confirmed. He further argued that it was not a case of correction of clerical error in the decree itself but a fresh decree came into existence under Order 34, Rule 6 on 3-7-76 with varied terms as regards the rate of interest, which was raised from 3% to 6% and, as such, it cannot be said to be merely an amendment in the earlier decree, prepared on 17-11-66 which was sought to be executed by the attachment and sale of the unmortgaged property. The learned counsel for the opp. parties further urged that although a decree could be amended under the provisions of Section 152 C. P. C., but the amendment will not relate back to the decree itself and, as such the decree dated 17-11-1966, which was prepared under Order 34, Rule 5, cannot be treated to be one under Order 34, Rule 6 by order dated 18-10-74 from its inception. According to him, the decree, which was prepared and signed on 3-7-76 in pursuance of the aforesaid order dated 18-5-74 was a fresh decree under Order 34, Rule 6 and the sale made on 13-5-69 cannot be held to be a valid sale as the property other than the mortgaged property could not be attached and sold in a decree prepared under Order 34, Rule 5, The learned counsel further argued that the plot in question has been sold for an inadequate amount and the judgment debtor would stand to suffer by confirmation of the sale. The learned counsel further contended that the judgment debtor has deposited the entire money due against him. He had deposited a sum of Rs. 4,146-75 p. on 30-7-76 and a sum of Rs. 1,600/- on 5-7-1978. The seconddeposit was made to cover up his liability with regard to the enhanced rate of interest in the aforesaid decree. He thus contended that since the entire amount has been paid, the learned lower appellate court has rightly refused to confirm the sale and there was no error in the impugned order in striking off the execution in full satisfaction of the decree. The learned counsel lastly contended that since the subsequent decree, prepared under Order 34 Rule 6 was not put into execution and the property in question was not auctioned and sold in pursuance thereof, hence there was no question of making deposit under Order 21, Rule 89 for setting aside of the execution sale of the property, made on 13-5-1969, as the said execution sale was in-valid and void.

18. I have considered the aforesaid arguments very carefully. The first question, which crops up for consideration in the present case, is that whether any amount had remained unpaid by the execution of the decree prepared under Order 34, Rule 5 by executing it against the mortgaged property and an application was moved by the decree holder for getting a decree prepared under Order 34, Rule 6 in respect of the remaining un-paid amount under the decree or not

19. It is not disputed during the course of argument by the learned counsel for the petitioner that a decree under Order 34. Rule 5 was prepared on 16-5-58 and the same was put into execution and the mortgaged plot No. 45 was sold for Rs. 1,000/- on 4-6-62. Thereafter the decree holder moved an application on 23-2-66 for the preparation of a decree under Order 34, Rule 6 for the realisation of the unpaid amount of Rs. 2,749-75 p. but he urged that since in the prayer, at the end of the application, it was written that the decree be prepared under Order 34, Rule 5, hence the application cannot be treated to have been made under Order 34, Rule 6 C. P. C. I have gone through the said application, a copy of which has been annexed as Annexure '1' to the supplementary affidavit, filed by the judgment debtor. The following averments, contained in the said application would indicate that the decree holder had applied for the preparation of the decree under Order 34 Rule 6 although in the prayer clause Order 34 Rule 5 wasmentioned, which appears to be an apparent mistake,

'Atah jaidad marhoona se motalbe decree wasool nahi ho sakta hai, Aisi soorat me matalba decree ke wasuli ka liye decree Order 34 kaida 6 murratab hone jaruri wanyay-sangat hai Atah prarthna Hai ki decree hasb Order 34 kaida 5 murratab farmaya jane ki agya pradan ki jawe'.

The application was allowed on 21-9-1966 by the following order:

'Case called out, No one responded on behalf of the O. P. although already sufficiently served The applicant-plaintiff is present along with his learned counsel Sri R. R. Kashyap since no objection has been filed against the application 3/C the same is allowed while ordering the final decree to be prepared in accordance with law within the time prescribed,'

The aforesaid facts indicate that a decree under Order 34 Rule 5 was already prepared on 14-5-58 and when the decretal amount could not be realised in full by sale of the mortgaged property, the decree holder had applied for the preparation of the decree under Order 34, Rule 6 and the court had ordered to prepare the decree according to law. Since already a decree under Order 34, Rule 5 was prepared and the same was also put into execution, hence a decree under Order 34, Rule 6 alone could be prepared under law and not another decree under Order 34, Rule 5 C. P. C, Thus there could be no occasion nor it would be conceivable that by the aforesaid order dt. 21-9-66 the court had directed preparation of decree again under Order 34, Rule 5 on the said application of the decree holder. In these circumstances, in my opinion the error in preparation of the decree dt 17-11-1966 under Order 34, Rule 5 instead of Order 34. Rule 6 was merely a clerical error and the party to a case cannot be made to suffer by the mistake of the court itself.

20. The aforesaid order dated 21-9-66, allowing the application, would be attributed to be an order passed for preparation of the decree under Order 34, Rule 6, which alone could be passed in the given set of facts stated above. The decree, which was wrongly prepared under Order 34, Rule 5, would thus be attributed to be a decree which could be passed under the powers exercisable bythe authority, namely, under Order 34, Rule 6 under which alone a decree in the aforesaid circumstances could be prepared, There is thus no escape from the conclusion that it was nothing else, but a case of clerical error that had crept in inadvertently in preparation of decree due to accidental slip or omission to notice the said fact The error in preparation of the decree under Order 34, Rule 5 was subsequently corrected and the decree stood rectified after a prolonged litigation, already referred to above. I, therefore, find that the property in question was rightly attached in execution of the decree dt, 17th Nov. 1966 which, as a matter of fact, should have been prepared under Order 34, Rule 6, although wrongly prepared under Order 34. Rule 5.

21. The learned counsel for the judgment debtor next argued that the sale of the land in question which was not the mortgaged property, would be illegal and void as no decree under Order 34, Rule 6 was then in existence and ha placed reliance on a decision of the Calcutta High Court in Ariatullah. v. Sashi Bhushan (AIR 1920 Cal 99). This case, however, does not apply to the facts of the present case, The said case was referred to in the aforesaid decision of the Supreme Court in Janak Raj's case : [1967]2SCR77 (supra) and it was held to be not applicable in similar set of facts. In the aforesaid case the sale was held in execution of the decree for an amount in respect of which there was no decree existing at that time and, it was after the sale of the property was made, the decree holder had obtained a decree entitling him to the amount for which the sale was held and in view of these facts it was observed in the said case that the fact that subsequent to the sale the decree holder obtained the decree entitling him to the amount for which the sale was held, would not validate the sale. In the present case there was already a decree standing against the judgment debtor. The decree under Order 34. Rule 5 was executed and only a sum of Rs. 1,000/- was realised by the sale of the mortgaged property. The decree holder had, thereupon, applied on 23-2-66 for preparation of the decree under Order 34, Rule 6 in respect of the remaining unpaid decretal amount of Rs. 2,749-75, which was allowed as aforesaid but instead of preparing the decree under Order 34, Rule 6 it was wronglyprepared under Order 34. Rule 5. In these circumstances the attachment and sale of the property in question, could not be invalid and it cannot be struck down as void auction sale merely because decree was wrongly prepared evidently due to mistake of Court I, therefore, find no substance in the afore-said argument of the learned counsel for the judgment debtor.

22. The learned counsel for the judgment debtor next argued that there was no error, accidental slip or omission in preparation of the decree and, as such, it could not be corrected in exercise of the power under Section 152 C. P. C. and the decree passed in pursuance of the order dt, 18-5-74 was rather a fresh decree and it was not passed to remove the error in preparation of earlier decree due to any clerical error, accidental slip or omission. I do not find any substance in this argument. A clerical mistake is a mistake in writing or typing and an error arising out of or occurring from an accidental slip or omission is an error due to careless mistake or omission unintentionally made. The accidental slip unintentionally made by the court which, obviously, occurs by omitting to embody in the decree something which the court, in fact, ordered to be done or which could not be done on the given set of facts. In the present case, as already noticed above, the decree-holder had, in effect, applied for the preparation of decree under Order 34, Rule 6 and the court had passed an order for the preparation of the decree in a accordance with law. Since the decree under Order 34, Rule 5 was already passed and the unpaid decretal amount was sought to be realised by a decree sought to be prepared under Order 34, Rule 6, hence the error, which crept in the preparation of the decree, can very well be said to be a clerical error or an error arising out of an accidental slip or omission unintentionally made which could be corrected in exercise of power under Section 152, C. P. C. and it stood corrected by the aforesaid subsequent order and by it no fresh decree would be construed to have been passed. This court had, vide earlier order dt. 4-4-72 directed the correction to be made in the decree by holding that there was mistake by the court in not having a proper decree prepared and no party should be allowed to suffer for the mistake of the court. This courthad also, by subsequent order, dated 27-4-78, upheld the executability of the decree which was challenged by the judgment debtor, I, therefore, find no illegality in the attachment and sale of property in question and the opp. party No. 1 cannot be permitted to urge against the executability of the decree in view of the aforesaid earlier decision of this court.

23. The next question for consideration is whether the judgment debtor can seek setting aside of the auction sale on the basis of the deposit made by him on 30th July, 1976 and 5th July, 1978. Admittedly, the auction sale took place on 13-5-69. In order to seek cancellation of the sale under Order 21. Rule 89, the deposit should have been made within a period of thirty days from the date of auction sale. This period cannot be extended as held in Rameshwar Misser v. Sureswhar Misser (AIR 1917 Pat 344) wherein it has been held that:

'Under Order 21. Rule 89 a judgment-debtor may obtain a reversal of a sale by deposit of money in Court, but such deposit must be made within 30 days of the sale. The court has no jurisdiction, except with the consent of parties, to extend the time, nor can it set aside a sale by allowing the judgment-debtor to deposit the decretal money after the period of limitation has passed.'

Similar view has been taken by Madras High Court in the case reported in Vannisami Thevar v. Pariayaswami Thevar, (AIR 1917 Mad 176) where it has been held that:--

'Unless the deposit itself is made with-in 30 days of a sale, the court has no power to entertain an application for setting it aside presented within the period, the requirements of Order 21, Rule 92 (2). Civil P. C. not being merely, directory but mandatory'.

It was further held that:

'The words 'on his depositing' in Order 21, Rule 89, Civil P. C., qualify the term 'apply' and a deposit is a condition precedent to the making of an application for setting aside a sale'. The court has no power to extend the time for making the deposit prescribed by the Code and their inherent powers under Section 151. C. P. C., cannot be invoked for the purpose, Patna High Court in a decision reported in Smt. Matrani Devi v. Chhathu Pd. (AIR 1972 Pat 551 held that (at p. 56):-- 'Where a judgment-debtor applying for setting aside a sale under Order 21, Rule 89 has failed to deposit the amount within time prescribed by Article 127, Limitation Act (1963), the Court has no power to extend the time either under Section 148 or Section 151 of the Code.'

It is thus well settled that the judgment-debtor for seeking setting aside the auction sale under Order 21, Rule 89 has to make the deposit within a period of 30 days from the date of auction sale and the time cannot be extended by the court. The aforesaid deposit made by the judgment-debtor on 30th July, 1976 and 5th July, 1978 cannot, therefore, be taken to have been made within the provisions contained under Order 21, Rule 89. The deposit of Rs. 3120-50 P. made by the judgment-debtor on 3-7-1969 will also not enure to his benefit as he had subsequently withdrawn the same unconditionally. The judgment-debtor has also not applied for setting aside the auction sale under the aforesaid provision. The aforesaid deposit, therefore, cannot have any bearing on the question of setting aside the auction sale.

24. The learned counsel for the judgment-debtor has further argued that the petitioner cannot be said to be a bona fide purchaser as he could have very well noticed that the property was not a mortgaged property; hence it could not be attached and sold in execution of the decree dated 17-11-1966 under Order 34, Rule 5, C. P. C. and even is notionally it may be taken to be a decree under Order 34, Rule 6, the auction held would be invalid and the petitioner, who is the auction-purchaser, cannot claim its confirmation. I do not find any merit in this submission. The petitioner, who is the auction-purchaser, is not a decree-holder nor he was a party to the case and nothing has been urged to indicate that he cannot be treated to be a bona fide purchaser and Without notice of the aforesaid error, in preparation of the decree in execution of which the property in question was attached and put to sale. The petitioner is the stranger to the case, hence it cannot be attributed that he was knowing the aforesaid technical error in the preparation of the decree nor he could be said to be aware that the property put to auction sale was not capable of being attached or sold, on the grounds now urged on behalf of the judgment-debtor. The judgment-debtor had also not got stayed the sale of the attached property inquestion which was sold in open auction held on 13-5-1969. In these circumstances the petitioner is apparently a bona fide purchaser in the auction sale, and would be entitled to claim confirmation of sale as no action was taken within the time by the judgment-debtor under the provisions of Order 21, Rule 89 for setting aside sale made in favour of the petitioner in the said auction sale duly made. The petitioner's right to claim confirmation of sale would not be affected at all. Even if, instead of making correction in the decree dt, 17-11-66 itself, a fresh decree was prepared on 30th July, 1976, it would not affect the petitioner's right to claim confirmation of sale, The Hon'ble Supreme Court in Janak Raj's case : [1967]2SCR77 (supra) has held that:--

'The auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside, The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified.'

Thus even if the decree in question be taken to have been modified by enhancement of rate of interest from 3% to 6% and a fresh decree was prepared, the auction sale in question cannot be cancelled merely because the decree in question was ultimately modified or substituted. Under the Code of Civil Procedure the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application, as is referred to in Order 21. Rule 89, is made or when such application is made, is disallowed. In the present case no application, under Order 21, Rule 89 was moved hence the auction sale deserves to be confirmed under Order 21, Rule 92. This court in Mani Lal v. Ganga Pd. : AIR1951All832 :

'mere fact that the judgment debtor had filed an appeal against the decree in which the sale was held would not affect the bone fide nature of the sale even it a decree was ultimately reversed.'

The Privy Council had an occasion to consider the said matter in a case reported in Zainul-Abdin-Khan v. Mohammad Asghar All Khan ((1887) ILR 10 All 166) (PC) wherein it has been held that:

'Certain sale has been held in execution of ex parte decree and some of the properties were bought by the bona fide purchaser and the decree was modified afterwards as a result of an appeal to Her Majesty in Council and it was found that as the decree finally stood, it would have been satisfied without sale in question having taken place. The judgment debtor sued the purchaser of some of the sales including holders of the decree and bona fide purchaser. It was held by the Judicial Committee that as against the bona fide purchaser who were stranger, the suit must be dismissed.'' This decision of the privy Council was approved by the Hon'ble Supreme Court in Janak Raj's case : [1967]2SCR77 (supra). In the present case, the petitioner, as already stated above is a bona fide purchaser and is stranger to the suit. He is, therefore, entitled to get the sale confirmed notwithstanding the fact that a fresh decree was prepared after the sale instead of incorporating correction in the earlier decree, which was wrongly prepared under Order 34, Rule 5 instead of under Order 34, Rule 6 as aforesaid.

25. The learned counsel for the judgment debtor in the end argued, that the property has been sold for inadequate amount and as such the sale should not be confirmed. I do not find any merit in this submission. The judgment debtor had not challenged before the courts below that the property in question was sold for inadequate amount nor the lower appellate court has cancelled the auction sale on the ground. He cannot, therefore, be permitted to urge this ground for the first time in this court. Besides that the determination of question would involve the consideration of various factors. The auction sale held by the court cannot fetch a price which voluntary sale will fetch and the auction sale cannot be struck down on the ground of alleged inadequacy of the price. It has been held by the Division Bench of this Court in Amba Lal v. Ram Gopal : AIR1933All218 that 'in the absence of the proof to the contrary the presumption is that the price fetched at a court sale, which any and every person is entitled to bid, is adequate.' Hon'bleSupreme Court in Kayjay Industries (P) Ltd. v. Asnew Drums (P) Ltd. : [1974]3SCR678 held that 'the court sale cannot fetch a price which a voluntary sale will fetch.' I thus find that the auction sale cannot be set aside merely on that ground. Such question could be urged and determined if the judgment debtor would have applied for setting aside the sale under Order 21. Rule 90 C. P. C. which has not been done in the present case. Whether the property has been auctioned for inadequate price or not is purely a question of fact which cannot be considered by this court under Article 226 of the Constn. of India. This question was also not raised by the judgment debtor before the courts below.

26. In view of what has been said above, I find that the impugned order dt. 14-9-77 passed by the District Judge, Mirzapur in refusing to confirm the sale of the property in question in favour of the petitioner, a certified copy of which has been annexed to the writ petition, is per se wrong and suffers from manifest error of law apparent on the fact of the record and has resulted in grave miscarriage of justice.

27. In the result the writ petition succeeds and is, accordingly, allowed. The impugned order dated 14-9-77 passed by the District Judge, Mirzapur, opp. party No. 4 is hereby quashed and he is directed to pass appropriate orders regarding the confirmation of sale and issue a sale certificate to the petitioner in respect of property in question. Let a writ of mandamus be issued accordingly. In the circumstances of the case, the parties shall bear their own costs.


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