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Smt. Mullo Bai and Vs. Raghubardayal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 39 of 1980
Judge
Reported inAIR1982MP32; 1981MPLJ577
ActsCode of Civil Procedure (CPC) , 1908 - Order 21 Rules 58 and 58(1), 84 and 92
AppellantSmt. Mullo Bai and ;ors.
RespondentRaghubardayal and ors.
Appellant AdvocateR.D. Sharma, Adv.
Respondent AdvocateV.N. Phatak, Adv.
DispositionRevision dismissed
Excerpt:
.....provision for re-sale in default of deposit of the required amount and, further, there is a provision for setting aside the sale as enjoined by rule 89. therefore, i am inclined to the view that the words 'the property attached has already been sold',as used in the proviso (a) of sub-rule (1) of rule 58 of order 21 cpc, simply and clearly mean, such a 'sale' which stands knocked down in favour of the highest bidder and who, as such, is declared to be the purchaser after his deposit of 1/4th amount of the purchase money in accordance with rule 84 ibid......it is then, finally, under rule 92, in that the order for confirmation of sale and making the sale absolute is passed, and the purchaser then gets entitled to a certificate of purchase in accordance with rule 94 ibid. considering all these various rules, as stated above, which deal with the question of re-sale and deposit of the amount after the sale or regarding setting aside of the sale, it is abundantly clear that for the specific purposes of execution proceedings under order 21, cpc, 'sale'' is considered to be one, when, in auction, rule 84 of order 21 cpc, stands complied, i.e., when in the auction a person is declared to be the purchaser and he immediately deposits the required 1/4th amount of the purchase money, when this rule is not complied, then there is a provision for.....
Judgment:
ORDER

M.D. Bhatt, J.

1. This is the objectors' revision against the executing Court's order dated 21-12-1979, whereby their objection under Order 21 Rule 58 of the Civil P. C. was dismissed as being untenable.

2. In the course of execution of a money decree, the house in question, alleged to be belonging to the judgment-debtor was attached. After the attachment, the sale proceedings continued in accordance with the procedure prescribed under the respective Rules of Order 21 CPC. It is not in dispute that, finally the auction had taken place on 22-11-1978 and the sale was knocked down in favour of the highest bidder. It is equally not in dispute that the said sale has not yet been confirmed, and the sale has not been made absolute as yet. The judgment-debtor's widow-mother Mullobai and her two brothers filed the objection under Order 21 Rule 58 CPC on 18-12-1978, i. e. about a month after the knocking down of the sale in favour of the highest bidder. The executing Court vide the order which is impugned before me, held this objection as untenable because of the debarring provision under Proviso (a) of Rule 58 (1) of Order 21 CPC, which clearly mandated that 'no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold'. Since according to the executing Court 'sale' had already taken place on 22-11-1978, the subsequent objection of the third party which was filed on 18-12-1978 was not liable to be entertained. The objection, accordingly, was dismissed and, hence, now, the objectors' present revision.

3. Learned counsel for the applicants-objectors has urged before me that solitary point that the Proviso (a) of Sub-rule (1) of Rule 58 of Order 21 CPC is not attracted at all inasmuch as the public auction dated 22-11-1978 could not be treated to be a sale. According to the applicants, unless the sale proceedings were fully complete and unless the sale was confirmed and was made absolute, it would be no 'sale' in the eyes of law, and, therefore, the objection under Order 21 Rule 58 CPC could not be thrown out as untenable till the process of confirmation of sale was complete. Learned counsel for the non-applicant-decree-holder has expressed his dissent with this view and has urged to the contrary, that as soon as the 'sale' is knocked down in auction, it is a 'sale' for purposes of the provisions of Order 21 Rule 58 CPC.

4. I have considered the arguments of both the sides. The words 'the property attached has already been sold', as used in the Proviso (a) of Sub-rule (1) of Rule 58 of Order 21 CPC, have to be understood and appreciated in the context of the procedure for sale, as laid down under various Rules of Order 21, C.P.C., and not independently of these provisions, by interpreting the word 'sale' as generally understood or as defined in the Transfer of Property Act or in any other Act, whatsoever. The respective Rules under Order 21, CPC show that after attachment of the property, the next procedure to be followed is the one under Rule 68 of Order 21 regarding notice and proclamation. Thereafter, time for sale is fixed under Rule 68 (ibid) and then sale takes place. In Rule 84 ibid it has been enjoined that on every sale of immovable property, the person declared to be the purchaser has to deposit 1/4th amount of the purchase money and, in default of such deposit, the property has to be resold. Rule 87 deals with re-sale of the property. Rule 89 provides for setting aside the sale on non-compliance of certain conditions as mentioned therein. It is then, finally, under Rule 92, in that the order for confirmation of sale and making the sale absolute is passed, and the purchaser then gets entitled to a certificate of purchase in accordance with Rule 94 ibid. Considering all these various Rules, as stated above, which deal with the question of re-sale and deposit of the amount after the sale or regarding setting aside of the sale, it is abundantly clear that for the specific purposes of execution proceedings under Order 21, CPC, 'sale'' is considered to be one, when, in auction, Rule 84 of Order 21 CPC, stands complied, i.e., when in the auction a person is declared to be the purchaser and he immediately deposits the required 1/4th amount of the purchase money, when this Rule is not complied, then there is a provision for re-sale in default of deposit of the required amount and, further, there is a provision for setting aside the sale as enjoined by Rule 89. Therefore, I am inclined to the view that the words 'the property attached has already been sold', as used in the Proviso (a) of Sub-rule (1) of Rule 58 of Order 21 CPC, simply and clearly mean, such a 'sale' which stands knocked down in favour of the highest bidder and who, as such, is declared to be the purchaser after his deposit of 1/4th amount of the purchase money in accordance with Rule 84 ibid. There is no propriety or justification for connecting the word 'sale' with the one as referred to in Rule 92, because this Rule refers to confirmation of sale and to the making of sale absolute. A reading of Rule 92, incidentally, would also make it clear that this provision treats the word 'sale' as the one which has taken place earlier, and it is that sale which under this Rule is finally confirmed or made absolute. In this view of the matter, the executing Court was obviously right in dismissing the objectors' objection under Order 21 Rule 58 CPC, inasmuch as this objection had been preferred long after the 'sale' which had actually taken place on 22-11-1978 and knocked down in favour of the highest bidder who was declared as the purchaser. The objectors' objection under Order 21 Rule 58 CPC, therefore, was obviously hit by the Proviso (a) of Sub-rule (1) of Rule 58 of Order 21 CPC.

5. In the result, thus, the revision being without any substance is dismissed, and the impugned order of the executing Court is affirmed. The applicants-objectors shall bear the non-applicant-decree-holder's costs, besides bearing their own. Pleaders' fee of Rs. 50/- is allowed on either side, if certified.


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