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Ganja Satyavatamma Vs. Nima Chiti Appavyamma and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberM.A. No. 51 of 1962
Judge
Reported inAIR1964Ori91
ActsLimitation Act, 1908 - Schedule - Article 166; Code of Civil Procedure (CPC) - Sections 47 - Order 21, Rule 90
AppellantGanja Satyavatamma
RespondentNima Chiti Appavyamma and ors.
Appellant AdvocateP.V.B. Rao, Adv.
Respondent AdvocateN.V. Ramdas, Adv.
DispositionAppeal dismissed
Cases ReferredAnnie Marie Fernandez v. Ma
Excerpt:
.....the appellant filed an application on 26-10-1961 questioning the validity of the sale of the jeypore property on the ground that on 1-11-1960, with the consent of the decree-holder and the judgment-debtors, the district judge passed an order to the following effect :as the decree-holder has no objection to the prayer of the petitioner for sale of the secured properties in the first instance, the petition is allowed with the consent of both the parties and it is ordered that the secured property would be brought to sale in the first instance and that the attached property would be liable to be sold subsequently if the decretal dues are not satisfied by the sale of the secured property. the upshot of the order in which the sale took place was dereliction of the order of the court..........fixed at rs. 15,000/, the bid was not accepted and the sale was adjourned. the bid in respect of jeypore property was, however, accepted. item-was sold for rs. 400/- and item 2 for rs. 5100/-. the sale in respect of item-2 was set aside on 23-9-1961. the appellant filed an application on 26-10-1961 questioning the validity of the sale of the jeypore property on the ground that on 1-11-1960, with the consent of the decree-holder and the judgment-debtors, the district judge passed an order to the following effect :'as the decree-holder has no objection to the prayer of the petitioner for sale of the secured properties in the first instance, the petition is allowed with the consent of both the parties and it is ordered that the secured property would be brought to sale in the first.....
Judgment:

G.K. Misra, J.

1. The appellant is the daughter and one of the legal representatives of the deceased third dfendant against whom, the decree-holder had decretal dues of more than Rs. 15,000/-Two sets of properties were put to sale. Six houses at Nowrangpur were sold for Rs. 14,250/-. This property was given by way of security. The property, which is the subject-matter of this appeal, is situate at Jeypore. All the properties were put to sale on 21-9-1961. The bid forNewrangpur property came up to Rs. 9000/-. As the upset price for this property had been fixed at Rs. 15,000/, the bid was not accepted and the sale was adjourned. The bid in respect of Jeypore property was, however, accepted. Item-was sold for Rs. 400/- and item 2 for Rs. 5100/-. The sale in respect of item-2 was set aside on 23-9-1961. The appellant filed an application on 26-10-1961 questioning the validity of the sale of the Jeypore property on the ground that on 1-11-1960, with the consent of the decree-holder and the judgment-debtors, the District Judge passed an order to the following effect :

'As the decree-holder has no objection to the prayer of the petitioner for sale of the secured properties in the first instance, the petition is allowed with the consent of both the parties and it is ordered that the secured property would be brought to sale in the first instance and that the attached property would be liable to be sold subsequently if the decretal dues are not satisfied by the sale of the secured property.'

It may be made clear that the secured properties refer to those at Nowrangpur and the attached properties refer to those situate at Jeypore. From the statements of facts already made it would be clear that both classes of properties were put to sale on 21-9-1961. Putting both the properties to sale on the same day was itself in violation of the order passed by the Court on 1-1-1960. There was a further violation when the bid in respect of Jeypore property was accepted on 21-9-61 while the sale of Nowrangpur property was deferred to a subsequent date, the bid price not having come up to the upset price fixed by the Court.

The upshot of the order in which the sale took place was dereliction of the order of the Court passed on 1-11-1960. The result was that, though the Court had directed that the secured property would be first brought to sale and that if the decretal dues were not satisfied by the sale of the secured property then the attached property would be sold, in fact, the sale took place in the reverse order. The appellant took objection to the order of sale 30 days after. This objection was overruled by the learned Subordinate Judge, Jeypore on 3-5-1962. Against this order the appeal has been filed.

2. Mr. P. V. B Rao contends that the Nowrangpur property was sold by lots on 21-12-1961 for Rs. 14,250/- and the balance decretal dues would come to about Rs. 1800/- and that if Jeypore property had not been sold earlier contrary to the direction given by the learned District Judge on 1-11-1960, the appellant could have deposited the balance Rs. 1800/- in cash and would have protected the Jeypore property from sale. The sale of the Jeypore property being contrary to the direction of the Court is a nullity and must be set aside under Section 47, C. P. C.

3. The following points arise for consideration :

(i) Was there any violation of the direction given by the learned District Judge on 1-11-60as to the order in which the different properties would be sold?

(ii) Does the objection raised by the appellant come within the scope of Order 21, Rule 90, C. P. C., and, if so, is the application barred by tune and

(iii) Is the sale of Jeypore property without jurisdiction and a nullity, or is it merely void-able?

4. From the narration of facts already made there is no escape from the conclusion that the sale of the attached property on 21-9-1961 and that of secured property on 21-12-1961 were in clear violation of the direction given by the learned District Judge on 1-11-1960.

5. It is contended that there is no Rule in Order 21, C. P. C. regulating the order in which sale of properties would take place and that in the absence of such a Rule and a direction in the decree, the order of the Court was merely an administrative order and not a judicial order and its violation is not an illegality. There can be no doubt over the position that the order of the learned District Judge dated 1-11-1960, giving direction as to in what order the properties would be sold, relates to execution of the decree and affects the substantive rights of the parties. Doubtless there is no particular Rule in the Civil Procedure Code regulating the order in which the sale is to take effect, but the Code does not take away the inherent power of the Court to control sale as taking place in a particular mode. The order passed by the Court on 1-11-1960 relating to execution was a judicial order and was not an administrative order.

The sale in violation of the Court's order is a material irregularity. Irregularity means not being in conformity to the rules prescribed for regulating execution sale and the irregularity in the procedure to be followed before property is put up for sale. The irregularity in this case was not in violation of any rule under Order 21, but was in violation of the order of the Court which has the force of a Rule. Non-compliance with the direction of the Court as to the order in which the sales of different properties were to take place amounted to material irregularity. Whether the order dated 1-11-1960 is a judicial or an administrative order is thoroughly irrelevant to the question in issue as it relates to the execution of the decree, and the non-compliance with the order indisputably amounts to a material irregularity.

6. Under Order 21, Rule 90, C. P. C., an application to set aside the sale lies on the ground of a material irregularity or fraud in publishing or conducting it. It is now necessary to examine if the material irregularity committed was with relation to the conducting of the sale. Mr. Rao contends that the violation of the Order does not pertain to the conduct of the sale. In Ram-chhiabar v. Bechu Bhagat, ILR 7 All 641 their Lordships observed that the expression 'conducting the sale' relates to the action of the officer conducting the sale and not to anything done before the sale or any proceedings unconnected with the actual carrying out of the sale. The meaning given to the expression has been accept-ed as sound in almost all later decisions. Thescheme in Order 21 also makes it clear. Under Order 21, Rule 64 the Executing Court may order that any property shall be sold.

Order 21, Rule 65 lays down that saye as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed. Order 21, Rule 66 relates to proclamation of sale by public auction. Order 21 Rule 69 refers to the officer conducting such sales. Thus any act done by the executing Court prior to the passing of an order for sale under Order 21, Rule 64 does not relate to the conduct of the sale. There aredifferent Rules after Rule 64 and before Rule 89 of Order 21 regulating the conduct of the sale. Any material irregularity done in respect of conduction under such rules or at such a stage comes within the purview of Order 21, Rule 90. The laches on the part of the sales officer in not adhering to the direction given by the Court as to in what order different properties would be sold clearly relates to the conduct of the sale. It is unnecessary to refer to large number of authorities cited before me. It would be sufficient to refer to Gauri v. Ude, AIR 1942 Lah 153 (FB), Seshagiri Aiyar v. Valambal Ammal, AIR 1952 Mad 377 and Satyanarayanamurthy v. Bhavanarayana, AIR 1957 Andh Pra 185 (FB).

7. The result of the aforesaid discussion is that by violation of the direction of the learned District Judge in not effecting the sales in a particular order, there was material irregularity in conducting the sale, and the matter directly comes within the scope of Order 21, Rule 90. The sale effected is not void for want of jurisdiction and is not a nullity. It is a voidable sale and could have been avoided on proof of the ingredients under Order 21, Rule 90, C. P. C.

Under Article 166 of the Limitation Act, the limitation for setting aside a sale in execution of a decree is thirty days. If the sale would have been void, then application under Section 47, C. P. C. will lie and the limitation would be governed by the residuary Article 181 which provides for a period of three years from the date of sale. But as the irregularity comes within the purview of Order 21, Rule 90 and application under Section 47, independent of Order 21, Rule 90 does not lie, the application filed by the appellant for setting aside the sale is clearly barred by time and must be dismissed.

On the analysis that Order 21, Rule 90 applies to the facts of this case, the appellant has a further hurdle under the Orissa Amendment to that Rule. The amendment adds the following proviso to Sub-rule (1) :

(i) Provided that no application to set aside a sale shall be admitted :(a) upon any ground which could have been, but was not put forward by the applicant before the sale was conducted, and

x x x x xIn this case, before the sale of Jeypore property was concluded it was open to the appellant to raise the objection that the sale of this propertyshould be deferred and sold after the Nowrangpur property had been sold. As the appellant did not advance such a claim, even an application under Order 21, Rule 90 was bound to be dismissed. Mr. Rao placed reliance on Murugappa Chettiar v. Chenglvaraya Chettiar, AIR 1944 Mad 465 in support of the contention that if the properties were not sold . in a particular order as directed in the decree, the Court had no jurisdiction to effect the sale and that the sale was a nullity and was not binding on the person affected. Apart from the fact that in the particular case there was a direction in the decree, which is not the case here, this decision was rightly dissented from in Annie Marie Fernandez v. Ma^he-van Madhavi, AIR 1955 Trov-Co. 92 which fully discussed the legal position and laid down correct law that such a sale was not nullity and without jurisdiction but was voidable and could be set aside under Order 21, Rule 90, C. P. C.

8. On the aforesaid discussion, I arrive at the following conclusion :

(I) The sale effected contrary to the direc- I tion of the learned District Judge was a material irregularity in conducting the sale.

(II) Objection to such sale could have been taken before the sale was effected under Order 21, Rule 90, C. P. C.

(III) The irregularity committed directly comes within the purview of Order 21, Rule 90 and cannot be canvassed under Section 47, C. P. C.

(IV) The application construed as one under Order 21, Rule 90, C. P. C. is barred by limitation.

(V) The sale is not without jurisdiction and is not a nullity and can be set aside only in a proceeding under Order 21, Rule 90, C. P. C. The application has no merit and has been rightly dismissed.

9. The appeal fails and is dismissed, but in the circumstances parties to bear their own costs throughout.


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