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Mool Chand Vs. Collector, Jalaun and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 448 (Tax) of 1976
Judge
Reported inAIR1982All141
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 84 and 85; Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 - Rule 285D, 285E, 285G and 285I
AppellantMool Chand
RespondentCollector, Jalaun and ors.
Appellant AdvocateM.C. Dwivedi, Adv.
Respondent AdvocatePradeep Chandra and ;T.P. Singh, Advs.
DispositionPetition allowed
Excerpt:
.....nature - binding under all circumstances - if as per rules auction buyer does not deposit 25% of purchase money initially and the rest within time period - sale becomes null and void - no provisions to extend time period for deposit. - - ' it would be seen that the person -declared to be the purchaser is required to deposit twenty five per cent of the amount of the bad immediately. rule 84 enjoins on the person declared to be the purchaser a duty to deposit tweny five per cent of the purchase money immediately after his declaration to be the purchaser and on his failure to do so the property shall forthwith be resold. rajendran (air 1981 sc 693). there the errors complained of by the judgment-debtor in the conduct of auction sale were to the effect that the proclamation was not..........and a duty placed under the statute on the execution court or the officer conducting the sale. rules 285-h and 285-i of the rules or rule 90 of order 21 of the civil p. c. are not meant to cover these defaults. applications can be made under these provisions to set aside the sale on grounds of irregularity or fraud in publishing or conducting the sale. under rule 285-i the judgment-debtor has further to satisfy the commissioner that on account of material irregularity or mistake in publishing or conducting the sale he has sustained substantial injury by reason of such irregularity or mistake. it would thus be seen that that rules 285-h and 285-i of the rules and rule 90 of order 21 of the civil p. c. contemplate entirely a different situation andnot the one with which we are.....
Judgment:

R.R. Rastogi, J.

1. By this petition under Article 226 of the Constitution the petitioner seeks the quashing of the order passed by the Collector on 7-4-1976 and by the Additional Commissioner on 11-6-1976 confirming the sale of his property. The facts are these. The petitioner carried on grain business as commission agent. For the assessment years 1968-69 and 1969-70 the Sales Tax Officer, Orai, made ex parte assessments on him creating a liability of Ms. 16,000/-for each of these two years respectively. The petitioner filed appeals against those assessment orders and deposited a part of the amount of tax for each of these two years. As for the balance ammount the papers were forwarded to the Collector for realisation as arrears; of land revenue. The petitioner's plots Nos. 403 (area 401 acres) and 507 (area 1.12. acres), of village Udatpura were attached. The sale proclamation, was issued on 4-3-1975 and the auction sale took place on 21-3-1975. Sri, Mantoley alias Mantai, respondent No. 5, offered highest bid of Rs. 13,000/- at that auction. That bid was accepted and he deposited Rs. 2,000/-on that very day and the balance of 25 per cent. of the sale price, that is Rs. l,250/- on the following, day. The petitioner filed, an objection under Rule 285-J of the U. P. Zamindari Abolition and Land Reforms Rules (hereinafter, referred to as 'the Rules') before Collector Jalaun, on 14-4-1975. It was contended by the petitioner in, that objection that he had not been given any notice of attachment and sale of the aforesaid plots and that the sale could not have been made unless prior sanction of the Commissioner, Jhansi Division, Jhansi, had been obtained. It was also contended that no citation or warrant had been, issued, for recovery of the amount and lastly that the auction-purchaser had not deposited one-fourth of the auction, money as required under the Rules.

2. The objection was dismissed by the Collector, Jalaun by his order dated 7-4-1976. Aggrieved the petitioner filed a revision which was dismissed by the Additional Commissioner, Jhansi, on 11-6-1976. It may be mentioned that the Collector Jalaun confirmed the sale on 7/-4-1976, itself. The balance amount of the auction money was deposited, by respondent No. 5 sometime thereafter. The petitioner seeks the quashing of these orders and further prays for a writ of mandamus directing the respondents to release the plots in dispute by withdrawing attachment.

3. Counter and rejoinder affidavits have been filed.

4. The facts which we have narrated above are not disputed.

5. It was submitted before us on behalf of the petitioner that the sale of the disputed plots in favour of respondent No. 5 was nullity and non est inasmuch as 25 per cent, of the amount of the bid was not deposited immediately after the bid was accepted and secondly that the full amount of purchase money was not paid by the purchaser on or before the 15th day from, the date of the sale, as required by Rules 285-D and 285-E of the Rules. Counsel for respondent No. 5, on the other hand, urged before us that the sale having been confirmed, cannot be challenged in this writ petition and apart from that the petitioner-judgment-debtor, did not file any objection against the sale under Rule 285H or Rule 285-I and hence cannot challenge the sale by means of this writ petition,

6. After considering the respective submissions, we find, that there is considerable substance in the contention raised on behalf of the petitioner. We may refer to the relevant Rules. Rule 285-A says that every sale under Sections 284 and 286 of the Zamindari Abolition and Land Reforms Act, shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. Sale can be made only after expiry of at least thirty days from the date on which the proclamation under Rule 282 was issued. The Collector may, from, time to time, postpone the sale also, Rule 285B and 285C are not relevant far the present purpose. Then come Rules 285D and 285E, which are extracted below:

'285-D. The person declared to be the purchaser shall be required to deposit immediately, twenty five per cent of the amount of his bid, and in default of such deposit the land! shall forthwith be again put up and sold and such person stall tee liable for the expenses attending the first sale and any deficiency of price which may occur on the re-sale which may be recovered from him by the Collector as if same were an arrear of land revenue.'

'285-E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the date of the sale at the district treasury or any sub-treasury and in ease of the sale have been defrayed therefrom, shall be forfeited to Government and the property shall be re-sold and the defaulting purchaser shall forfeit ail claim to the property, or to any part of the sum for which it may tee subsequently sold.' It would be seen that the person -declared to be the purchaser is required to deposit twenty five per cent of the amount of the bad immediately. If he fails to do so, the land shall have to be put for sale again and the expenses of the first sale and deficiency of price, if any, which may occur on the ire-sale, can be recovered from that person. The balance amount of purchase money is required to be paid by the purchaser on or before the fifteenth day from the date of sale. If there is any default, the deposit, after defraying the expenses of the sale, shall be forfeited to the Government and the property shall be 'put to sale again. Rule 585-G provides that no sale after postponement under Rules 285-A. 285-D or Rule 285-E in default of payment of the purchase money shall be made unless a fresh proclamation has been made as prescribed for the original sale. In other words, on the happening of the exigencies provided in these rules, the sale proceedings are to start afresh. A fresh sale proclamation is to be issued as prescribed for the original sale.

7. The judgment-debtor has been given a right to make an application within 30 days from the date of sale to have the sale set aside on his depositing certain amounts mentioned in Rule 285-H, in the Collector's office. Under Rule 285-I he has been given a right to make an application within the same period to the Commissioner to set aside the sale on the ground of 'some material irregularity or mistake in publishing or conducting it' and the sale shall be set aside on such ground only on his proving to the satisfaction of the Commissioner that he hag sustained substantial injury by reason of such irregularity or mistake.

8. Order 21 Rules 84, and 90 of the Civil P. C. contain similar provisions. Rule 84 enjoins on the person declared to be the purchaser a duty to deposit tweny five per cent of the purchase money immediately after his declaration to be the purchaser and on his failure to do so the property shall forthwith be resold. Under Rule 85, the fell amount of purchase money payable, shall be paid by the purchaser into court before the court closes on the 15th day from the sale of the property. Rule 86 says that in the event of any default of payment the court after, defraying the expenses of the sale from the amount deposited, forfeit the deposit to the Government and the property shall be resold. Under Rule 90 the judgment-debtor has been given a right to move an application to set aside the sale on grounds of irregularity or fraud.

9. The question that falls for our consideration is as to whether the provisions contained in Rules 285-D and 285-E of the Rules and Rules 84 and 85 of Order 21 of the Civil P. C. are mandatory and in the event of default the sale becomes a complete nullity or there is any discretion vested in the Court or the officer conducting the sale to extend the period for making these deposits. In our! opinion these provisions are mandatory and in the event of their non-compliance the execution court or the officer conducting the sale has no other option but to re-sell the property. They are not vested with any jurisdiction to extend the period provided for making these deposits. The twenty-five per cent of the amount of the bid is to be deposited immediately after the declaration of the person to be the purchaser and the full amount of the purchase money payable has to be paid on or before the fifteenth day from the date of the sale. Non-payment of the price on the part of the defaulting purchaser would render the sale proceedings a complete nullity, it is not necessary for the judgment-debtor to file an objection to draw the attention of the executing court or the officer conducting the sale to such default of the purchaser. It is an obligation and a duty placed under the statute on the execution court or the officer conducting the sale. Rules 285-H and 285-I of the Rules or Rule 90 of Order 21 of the Civil P. C. are not meant to cover these defaults. Applications can be made under these provisions to set aside the sale on grounds of irregularity or fraud in publishing or conducting the sale. Under Rule 285-I the judgment-debtor has further to satisfy the Commissioner that on account of material irregularity or mistake in publishing or conducting the sale he has sustained substantial injury by reason of such irregularity or mistake. It would thus be seen that that Rules 285-H and 285-I of the Rules and Rule 90 of Order 21 of the Civil P. C. contemplate entirely a different situation andnot the one with which we are concerned in the present writ petition. In theinstant case neither the twenty five percent amount of his bid was deposited byrespondent No. 5 immediately after thedeclaration that he was the purchasernor the full amount of purchase moneypayable was paid by him before the fifteenth day from the date of sale.The amount of his bid was Rs. 13,000/-.He should have deposited Rs. 3,250/-immediately after he was declared thepurchaser, but he deposited Rs. 2,000/-only on that date and the balance ofRs. 1,250/- on the following day. The remaining amount of the purchase moneywas paid by him some time after thedismissal of the application ofthe petitioner and confirmationof the application of the petitionerand confirmation of the sale by the Collector on 7-4-1976. It is indeed surprising that the Collector confirmed the salethough the full amount of the purchasemoney had not been deposited by theauction purchaser respondent No. 5.

10. There is a direct decision of the Supreme Court on this point. It was rendered in the case Mani Lal Mohan Lal v. Saved Ahmad (AIR 1954 SC 349). It was laid down in that case that the provisions of Order 21 Rules 84, and 86 requiring the deposit of twenty five per cent of the purchase money immediately on the person being declared as a purchaser, such person not being a decree-holder, and the payment of the balance within fifteen days of the sale, are mandatory and upon non-compliance with these provisions there is no sale at all. The Rules do not contemplate that there can be any sale in favour of a stranger purchaser without depositing twenty five per cent of the purchase money in the first instance and the balance within fifteen days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity The very fact that the court is bound to resell the property (R. 86) in the event of a default shows that the previous proceedings for sale are completely wiped out as if they did not exist in the eye of law.

11. It has been further laid down that if the payment is not made within the period of fifteen days, the court has the discretion to forfeit the deposit and there the discretion ends; but the obligation of the court to re-sell the property is imperative. A further consequence of non-payment is that the defaulting purchaser forfits all claim to the property.

12. This decision was rendered under the provisions contained in Rules 84, 85 and 86 of Order 21 of the Civil P. C. and since the provisions contained in Rules 285-D, 285-E and 285-G are in part materia with those provisions, these principles apply with full force to the present case. Since the respondent No. 5 defaulted in depositing the twenty five per cent of the purchase money in the first instance as also the balance within the period required by these Rules, the sale proceedings were rendered a complete nullity and the proprty had to be resold.

13. Learned counsel for respondent No. 1 cited two decisions of the Supreme Court in his support, one. Janak Raj v. Gurdial Singh (AIR 1967 SC 608) and other, Dhirendra Nath v. Sudhir Chandra, (AIR 1964 SC 1300). Both these decisions are distinguishable on facts. In Janak Raj (supra) the question involved in the appeal before the Supreme Court was : whether a sale of immoveable property in execution of a money decree ought to be confirmed when it is found that the ex parte decree which was put into execution has been set aside subsequently? The view taken was that the decree after sale because the title of the purchase relates back to the date of sale and not to that of its confirmation. The reason given was (at p. 618) :--

'The policy of the Legislature seems to be that unless 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.'

The situation obtaining in the present case is entirely different than what was in that case. In the present case, of course, the sale has been confirmed, but in view of the defaults committed by the auction purchaser the sale had been rendered a nullity and that being so its confirmation will not enure to the benefit of the purchaser. In Dhirendra Nath (supra) the judgment-debtor after receipt of the notice of proclamation of sale did not attend at the drawing up of the proclamation nor did object to the non-compliance with Section 35 of the Bengal Money Lenders Act. Further, by non-observance of the provisions of that section no substantial injury was caused to the judgment-debtor. It was held that the sale was not liable to be set aside in an application under Order 21 Rule 90 of the Civil P. C. To the same effect is the recent decision of the Supreme Court in S. A. Sundrarajan v. A. P. V. Rajendran (AIR 1981 SC 693). There the errors complained of by the judgment-debtor in the conduct of auction sale were to the effect that the proclamation was not drawn up in accordance with law. that credit had not been given for a payment made by the judgment-debtor and that there were other omissions in the sale proclamation inasmuch as it did not mention the date of auction, the tax payable and revenue assessment in respect of certain attached property and that the reduction of the upset price was improper and that the judgment-debtor being an agriculturist was entitled to the benefit of Madras Act No. IV of 1938. It was held that these were mere irregularities committed in settling the sale proclamation and consequently fell within the scope of Rule 90 of O, 21 and not within Section 47.

14. We have already indicated above that the defaults committed in the present case would not be covered either by Rule 285-I of the Rules or Order 21. Rule 90 of the Civil P. C. The consequences of these defaults are provided in Rr, 285D and 285-E themselves. Those consequences are that on the happening of these defaults, the officer conducting the sale should have forfeited the deposit and should have put up the attached property to re-sale. In other words, the sale made in favour of the respondent No. 5 became non est.

15. In view of the discussion above, the petition succeeds and the orders passed by the Collector Jalaun respondent No. 1 on 7-4-76 confirming the sale and dismissing the objection of the petitioner and by the Additional Commissioner, Jhansi, respondent No. 3 dated 11-6-1976 are quashed. It is made clear that the balance of the sales tax dues payable by the petitioner can be realised from the property attached in accordance with law. The petitioner is entitled to his costs from respondent No. 5.


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