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Tara Chand Lakhmichand Vs. Vishan Dass Asa Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 1364 of 1962
Judge
Reported inAIR1967P& H128
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73 - Order 21, Rule 72 and 72(3)
AppellantTara Chand Lakhmichand
RespondentVishan Dass Asa Ram and anr.
Appellant Advocate S.C. Goyal, Adv.
Respondent Advocate Dalip Chand Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredMaung Chit Hlaing v. N. A. R. M. Chetty Firm
Excerpt:
.....judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - therefore, the provisions of order 21, rule 72, clearly come into play......of the judgment-debtor in execution of a sale held in a decree passed in favour of another decree-holder. for his contention, he has relied on the decision in maung chit hlaing v. n. a. r. m. chetty firm, air 1924 rang 81. that decision, prima facie, supports his contention; but as will be presently shown, it has no application to the facts of the present case.2. vishan dass got a money decree for rs. 500 against chaman lal. chaman lal had paid rs. 200 to vishan dass and only rs. 300 remained to be paid. this amount was not paid. vishan dass, therefore, made an execution application with regard to the balance of the decretal amount on the 22nd april, 1961, and in that application, he got some immovable property belonging to the judgment-debtor attached. tara chand had also.....
Judgment:

D.K. Mahajan, J.

1. The short contention that is advanced by the learned counsel for the appellant in this appeal is that there is no bar to his client, who is also a decree-holder of the Judgment-debtor in another decree, in bidding and purchasing the property of the judgment-debtor in execution of a sale held in a decree passed in favour of another decree-holder. For his contention, he has relied on the decision in Maung Chit Hlaing v. N. A. R. M. Chetty Firm, AIR 1924 Rang 81. That decision, prima facie, supports his contention; but as will be presently shown, it has no application to the facts of the present case.

2. Vishan Dass got a money decree for Rs. 500 against Chaman Lal. Chaman Lal had paid Rs. 200 to Vishan Dass and only Rs. 300 remained to be paid. This amount was not paid. Vishan Dass, therefore, made an execution application with regard to the balance of the decretal amount on the 22nd April, 1961, and in that application, he got some immovable property belonging to the judgment-debtor attached. Tara Chand had also obtained a decree against Chaman Lal and made an application under Section 78 of the Code of Civil Procedure for rateable distribution. The attached property was put to sale and Tara Chand, without obtaining leave of the Court as required by Order 21, Rule 72 of the Code of Civil Procedure, bid at the auction and purchased the property. As a matter of fact, Tara Chand had applied for permission to bid at the auction and his application had been rejected. Chaman Lal then brought the present application under Order 21, Rule 72, Sub-clause (3) for setting aside the sale. This application has been allowed by the executing Court. An appeal against this decision was rejected by the lower appellate Court. Hence, the present second appeal.

3. The language of Order 21, Rule 72 of the Code of Civil Procedure reads thus:

'72 (1). No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2) Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of Section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it think* fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order; and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.' And the provisions of Section 73 may also be set out in order to illustrate the fallacy of the argument of the learned counsel for the appellant:

'73 (1). Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows:

'(a) where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon the proceeds of sale shall be applied--

first, in defraying the expenses of the sale,

secondly, in discharging the amount due under the decree;

thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any); and

fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

2. Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

3. Nothing in this section affects any right of the Government.' According to the learned counsel for the appellant, Tara Chand is not the holder of the decree in execution of which the property is sold and, therefore, it was not necessary for him to obtain permission before bidding. This contention loses sight of the fact that according to Section 73 of the Code of Civil Procedure, Tara Chand had made an application for execution of his decree to the Court and, in that application, had prayed for rateable distribution. Therefore, the property was also being sold in the execution of the decree of Tara Chand and his case strictly falls under Order 21, Rule 72. So far as the Rangoon decision is concerned, in that case, a decree-holder, who had a decree against the judgment-debtor whose property was being sold, had made an application under Section 78. In that situation, it was observed by heald, J. as follows--

'The wording of Order 21, Rule 72 shows that the rule has no application to the holders of decrees other than those in execution of which the property is sold.'

4. In the Rangoon case, the property was not being sold at the instance of the decree-holder, who had bid at the auction sale, the interpretation placed by that Court on Order 21, Rule 72 would be fully justified. But, in the present case, by reason of Section 73 of the Code of Civil Procedure, Tara Chand had made an application for execution of the decree in his favour and in execution the property in dispute had been put to auction sale. Therefore, the provisions of Order 21, Rule 72, clearly come into play. That being so, no fault can be found with the decision of the Courts below.

5. The result, therefore, is that this appeal fails and is dismissed with costs.


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