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Kanhaiyalal Vs. the Board of Revenue M.P., Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Case No. 83 of 1972
Judge
Reported inAIR1977MP94
ActsConstitution of India - Article 226; Madhya Pradesh Co-operative Societies Rules, 1962 - Rule 66(2) and 66(6); Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 85; Madras Code of Civil Procedure (CPC) (Amendment) Act
AppellantKanhaiyalal
RespondentThe Board of Revenue M.P., Gwalior and ors.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateR.K. Vijayavargia, Adv., ;G.S. Solanki, Dy. Govt. Adv. and ;Nimgaonkar, Adv.
DispositionPetition allowed
Cases Referred and Ambati Raghavalu v. Mova Venkamma
Excerpt:
.....of this amount upto that period. on the sale being confirmed in accordance with clause (i) of sub-rule (6), the recovery officer is bound to grant a certificate of sale as provided in clause (iii) of sub-rule (6). it is clear that grant of a certificate of sale on confirmation of the sale is imperative and the possibility of its not being granted on the sale being confirmed is clearly negatived by the rule. clause (i) by itself does not direct resale of the property in the event of failure to deposit purchase money within the time mentioned in clause (h). no other provision has been pointed out to us wherein a direction for resale is made on failure to deposit the purchase money in accordance with clause (h). however, it is rightly not disputed that in the event of the purchaser..........for which the immovable property is purchased in auction shall be paid by the purchaser to the sale officer at the time of the purchase, and in default of such deposit, the property shall forthwith be resold. (h) the remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within fifteen days from the date of sale : provided that the time for payment of the cost of the stamp may for good and sufficient reasons, be extended at the discretion of the recovery officer up to thirty days from the date of sale: (i) in default of payment of the purchase money within the period mentioned in clause (h), the deposit may, if the recovery officer thinks fit, after defraying the expenses of the sale, be forfeited to the state government.....
Judgment:

Verma, J.

1. The respondent No. 3 Society obtained an award against the petitioner for the recovery of a certain sum of money under the M. P. Co-operative Societies Act, 1960 (hereinafter referred to as the Act). Thereafter, the society applied for its execution according to Clause (c) of Section 85 of the Act. The recovery officer respondent No. 5 proceeded to execute the award in accordance with the rules contained in Chapter X in M. P. Co-operative Societies Rules, 1962 (hereinafter referred to as the Rules). The petitioner's interest in certain agricultural lands was consequently attached and the sale proclamation (Annexure A) dated 19-4-1968 was issued. The sale was held on 25-5-1968 at which respondent No. 2 Ashok Kumar was the highest bidder. As required by Clause (g) of Sub-rule (2) of Rule 66 of the Rules, the respondent No. 2 deposited 25% of the purchase money at the time of the purchase and the remainder of the purchase money was also deposited by him within fifteen days from the date of sale as required by Clause (h) of Sub-rule (2) of Rule 66 of the Rules. There is no dispute that the further requirement of depositing the amount required for the general stamp for the sale certificate in accordance with Clause (h) was not complied with by respondent No. 2 even upto 30 days from the date of sale. The sale was consequently set aside for non-deposit of the amount required for the general stamp for the sale certificate by the Recovery Officer vide Order dated 7-6-1969 (Annexure B). An appeal to the Joint Registrar, respondent No. 4, by respondent No. 2 was dismissed. A second appeal by respondent No. 2 the Board of Revenue was allowed by an order dated 31-1-1972 (Annexure C), taking the view that the sale was not vitiated for non-compliance of this requirement contained in Clause (h) of Sub-rule (2) of Rule 66.

2. The petitioner claims a writ of certiorari to quash the order dated 31-1-1972 (Annexure C) passed by the Board of Revenue.

3. Shri S. D. Sanghi, learned counsel for the petitioner contends that the requirement of depositing the amount required for the general stamp for the sale certificate in accordance with Clause (h) is mandatory and on failure to comply with the condition, the sale is a nullity which results automatically in a resale of the immovable property. He argues that the construction of the statutory provisions made by the Board of Revenue is erroneous and it discloses an error of law apparent on the face of the record on account of which the Order (Annexure C) is liable to be quashed by a writ of certiorari. On the other hand, Shri R. K. Vijayvargiya, learned counsel for respondent No. 2 contends that the construction of this provision by the Board of Revenue is correct. Shri Vijayvargiya further contends that there 19 no case for interference under Article 226 of the Constitution of India since there has been no failure of justice and there has been delay of about six months in filing this petition. He also relies on the averments made in para. 9 of the return which says that the petitioner entered into an agreement of sale with the respondent No. 2 after obtaining a further sum of money on 22-5-1968 on account of which the petitioner is not entitled to this relief.

4. Before considering the main argument relating to the construction of the rules we shall dispose of the other arguments of Shri Vijayvargiya. The, averment made by the respondent No. 2 regarding the alleged transaction between him and the petitioner on 22-5-1968 is a question of fact which is admittedly raised for the first time at this stage even though the order setting aside the sale was made by the Recovery Officer much after that date. Such an objection cannot, therefore, be permitted in this proceeding after the lapse of several years when it could have been raised even before the Recovery Officer. The objection of there being no failure of justice being substantially on this ground must also fail. There is also no merit in the objection of delay. In the first place, the delay, if any, is explained in para. 11 of the petition wherein it is stated that the petition could not be filed earlier on account of the poverty of the petitioner who has to work as an ordinary labourer after losing his lands and that there was delay in supplying certified copies of Annexures 'A' and 'B' to him. There is no allegation that the rights of anyone have undergone any change during the intervening period. At any rate, in our opinion, the petitioner has come to this Court expeditiously and there is no occasion to deny him the relief claimed on this ground.

5. We shall now consider the main question involved in this petition. The relevant provisions contained in Rule 66 may now be quoted:--

'66 Attachment and sale of immovable property.

(1) .....

(2) In the attachment and sale or sale without attachment of the immovable property, the following rules shall be observed.

(a).....

(b) .....

(c) .....

(d) .....

(e) .....

(f) .....

(g) A sum of money equal to 25 per cent of the price for which the immovable property is purchased in auction shall be paid by the purchaser to the sale Officer at the time of the purchase, and in default of such deposit, the property shall forthwith be resold.

(h) The remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within fifteen days from the date of sale :

Provided that the time for payment of the cost of the stamp may for good and sufficient reasons, be extended at the discretion of the Recovery Officer up to thirty days from the date of sale: (i) In default of payment of the purchase money within the period mentioned in Clause (h), the deposit may, if the Recovery Officer thinks fit, after defraying the expenses of the sale, be forfeited to the State Government and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold.

(j) Every resale of immovable property in default of payment of the amount mentioned in Clause (h) within the period allowed for such payment shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

(k) .....

(3) .....

(4) .....

(5) .....

(6) (i) On the expiration of thirty days from the date of sale, if no application to have the sale set aside is made for if such application has been made and rejected, the Recovery Officer shall make an order confirming the sale:

Provided that, if he shall have reasons to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may after recording his reasons in writing set aside the sale.

(ii) Whenever the sale of any immovable property is not so confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser.

(iii) After the confirmation of any such sale the Recovery Officer shall grant a certificate of sale bearing his seal and signature to the purchaser, and such certificate shall state the property sold and the name of the purchaser and it Shall be conclusive evidence of the fact of the purchase in all Courts and tribunals, where it may be necessary to prove it and no proof of the seal or signature of the Recovery Officer shall be necessary unless the authority before whom it is produced shall have reason to doubt its genuineness.

(iv) An order made under this sub-rule shall be final and shall not be liable to be questioned in any suit or other legal proceedings.

(7).....

(8) ......

6. Clause (h) of Sub-rule (2) of Rule 66 of the Rules including the proviso thereunder clearly lays down that the amount required for the general stamp for the sale certificate has to be paid within 15 days from the date of sale and in any case within thirty days from the date of sale if the Recovery Officer extends the time for payment of this amount upto that period. There can be no doubt that there is no power given to the Recovery Officer to extend the time for payment of cost of the stamp beyond thirty days from the date of sale. This outside limit of thirty days from the date of sale is fixed for payment of the cost of stamp even though there is no power to extend the time for payment of the remainder of the purchase money beyond fifteen days from the date of sale provided therein. The reason is obvious. Sub-rule (6) of Rule 66 of the Rules provides that on expiration of thirty days from the date of sale, if there is no pending application to have the sale set aside, the Recovery Officer shall make an order confirming the sale. Thus, when there is no possibility of the sale being set aside, on expiration of thirty days from the date of sale, the Recovery Officer must proceed to confirm the sale. On the sale being confirmed in accordance with Clause (i) of Sub-rule (6), the Recovery Officer is bound to grant a certificate of sale as provided in Clause (iii) of Sub-rule (6). It is clear that grant of a certificate of sale on confirmation of the sale is imperative and the possibility of its not being granted on the sale being confirmed is clearly negatived by the rule. It is for this reason that an outside limit of thirty days for payment of the cost of stamp is fixed by Clause (h) of Sub-rule (2) of Rule 66 of the rules in the manner already stated. We have no doubt that these provisions negative the view taken by the Board of Revenue and also canvassed by Shri Vijayvargiya that grant of the sale certificate can be deferred till payment of the cost of stamp while the sale could be confirmed on payment of the entire purchase money within specified period.

7. In our opinion, Clauses (i) and (j) of Sub-rule (2) of Rule 66 of the Rules also support the above conclusion. Clause (i) provides for forfeiture of that deposit in the discretion of the Recovery Officer in the event of the purchase money not being deposited within the period mentioned in Clause (h) of Sub-rule (2) of Rule 66. This deposit is obviously the one made under Clause (g) at the time of purchase of 25 per cent of the price. Clause (i) by itself does not direct resale of the property in the event of failure to deposit purchase money within the time mentioned in Clause (h). No other provision has been pointed out to us wherein a direction for resale is made on failure to deposit the purchase money in accordance with Clause (h). However, it is rightly not disputed that in the event of the purchaser failing to deposit remainder of the purchase money within the prescribed period in accordance with Clause (h), a resale is automatic. We find no reason to take the view that a different consequence was intended by the legislature, in case of a default in payment of the cost of stamp within the prescribed period for which also provision is made in the same Clause (h). Moreover, Clause (j) provides that a fresh proclamation in the manner prescribed shall be issued before 'every resale of immovable property in default of payment of the amount mentioned in Clause (h) within the period allowed for such payment'. Clause (j) in using the words 'in default of payment of the amount mentioned in Clause (h)' obviously provides for both the payments required to be made in accordance with Clause (h) which includes the payment of the cost of the stamp. We have no doubt that a resale of the property in case of default in payment of the cost of stamp within the period allowed in Clause (h) is equally implicit as it is undoubtedly in case of default in payment of the remainder of the purchase money within the period allowed. Such a result is obvious from the scheme of these rules and from a reading of all of them together in order to give effect to every provision. The view taken by the Board of Revenue and reiterated by Shri Vijayvargiya, if accepted, would result in rendering the proviso in Clause (h) superfluous and in adding words to these rules which are not there. The language of Sub-rule (6) will also require mutilation since the plain words thereof would be unworkable in that situation.

8. There are similar provisions contained in Order 21 of the Code of Civil Procedure which have been held to be mandatory by the Supreme Court in Manilal Mohanlal v. Sardar Sayed Ahmed, (AIR 1954 SC 349). Rule 85 of Order 21, Civil Procedure Code as amended in Madras and applicable also to Andhra Pradesh is similar to Clause (h) of Sub-rule (2) of Rule 66 of the Rules with which we are concerned while the amended Rule 87 applicable there is the same as Clause (j) of Sub-rule (2) of Rule 66 of the Rules. The result of these Madras amendments is to make the relevant provisions in Order 21, Civil Procedure Code substantially the same as in the aforesaid R. 66 of the M. P. Co-operative Societies Rules, 1962. Two Division Bench decisions in Mudragada Suryanarayanamurti v. Southern Agencies, (AIR 1962 Andh Pra 271) and Ambati Raghavalu v. Mova Venkamma, (AIR 1962 AP 334) have held that the non-payment of the cost of stamp within the prescribed period renders the sale a nullity resulting in the property being resold. No doubt, Rule 86 of Order 21, Civil Procedure Code directs resale of the property in default of payment in accordance with the last preceding rule i. e. Rule 85 while there is no such direction contained in Rule 66 of the Rules with which we are concerned. However, it has already been pointed out that this absence of an express direction of resale of the property is also in the case of default in payment of the remaining purchase money so that there is no distinction made in Rule 66 of the Rules between the consequences following from default in payment of either of the two amounts specified in Clause (h). This distinction between the provisions contained in Order 21 of the Code of Civil Procedure and the present rules does not distinguish these decisions. In our opinion, these decisions support the conclusion that we have reached on the construction of the above provisions contained in Rule 66 of the Rules.

9. On the above view taken by us, there is no dispute that the sale was a nullity for non-deposit of the cost of stamp within the period allowed in Clause (h) of Sub-rule (2) of Rule 66 of the Rules. It was, therefore, rightly set aside by the Recovery Officer. The impugned order dated 31-1-1972 (Annexure C) passed by the Board of Revenue discloses an error of law apparent on the face of the record on account of which it is liable to be quashed.

10. Consequently, this petition succeeds and is hereby allowed. The order dated 31-1-1972 (Annexure C) passed by the Board of Revenue is hereby quashed. In the circumstances of the case parties shall bear their own costs. Outstanding amount of security be refunded.


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