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Santa Singh Vs. Dial Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1391 of 1974
Judge
Reported inAIR1981P& H26
ActsPunjab Co-operative Societies Act, 1961 - Sections 54, 56, 62, 63 and 69; Code of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rules 54, 66, 66(2) and 90; Bengal Money Lenders Act - Sections 35
AppellantSanta Singh
RespondentDial Singh and anr.
Cases Referred and Ramanna v. Nallaparaju
Excerpt:
.....section 47 of the code of civil procedure. therefore, if a judgment-debtor does not raise his objection to the sale before the property is sold, his objection to the sale ability of the property taken after the sale, must be taken to be tantamount to an application to set aside a sale and as such governed by article 166 is clearly the auction sale. ' 10. this case is clearly distinguishable on the facts of the present case. 4, is clearly covered by section 47 of the code of civil procedure as it relates to the execution of the decree by the court which had no jurisdiction to execute the same in the absence of a certificate as contemplated under section 63(a) of the punjab co-operative societies act, 1961. consequently, all these proceedings culminating in the confirmation of the..........and without jurisdiction.12. turning to issue no. 1 regarding limitation, it will be seen that the limitation for such an objection petition under section 47 is governed by article 181 of the limitation act, 1908, which is now equal to article 137 of the limitation act, 1963. it has been in ramanna's case (air 1956 sc 87)(supra) that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by article 181 and not by article 166 of the limitation act, 1908. thus the objection petitioner in this case was within time.13. for the reasons recorded above, this petition fails and is dismissed with no order as to costs.14. petition dismissed.
Judgment:
ORDER

1. Santa Singh petitioner (auction purchaser) has filed this revision petition against the order of the Senior Sub Judge with Enhanced Appellate Powers, Amritsar dated 1st October 1974,whereby the order of the executing Court accepting the objection petition of the judgment-debtor was maintained.

2. Anjman Imdad Karja Bahmi, a co-operative society registered under the Punjab Co-operative Societies Act, 1961, obtained an award against Dial Singh (judgmer-debtor) for the recovery of about Rs. 600/- on 1st of March, 1963. On the basis of that award, the said Co-operative society filed an execution application. A shop belonging to Dial Singh Judgment-debtor was attached and sold. The Judgment-debtor filed an objection petition dated 22nd July,1965, under Section 47 of the code of Civil Procedure, alleging therein that the sale in favour of the auction purchaser petitioner, is valid because of invalid attachment and non-compliance of Order 21, Rule 54 and as well as on account of non-compliance of the provisions of Order 21, Rule 66, C. P.C., as no notice was served on him in accordance with that provision It was also pleaded that the said sale is vitiated because of fraud and collusion between the decree-holder and the auction-purchaser. An objection by the Co-operative society could not be executed without there being a certificate of Registrar of Co-operative Society given under Section 63 of the Punjab Co-operative Societies Act, 1961. Without such a certificate, the award could not become a decree and hence on the basis of that award no execution application could be filed. The execution proceedings taken on the basis of the award without the certificate of the Registrar are void and sale in consequence of the same is nullity and without jurisdiction. In the reply filed on behalf of the auction purchaser all these allegation were denied.As regards the last abjection relating to the certificate to the obtained from the Registrar Co-operative Society. It was stated that the execution was properly instituted. Moreover, this objection could not be taken in these proceedings, All the proceedings in the execution are valid. On the pleading of the parties, the executing Court framed the following issues :-

1. Whether the application is within time? OPD

2. Whether there has been material irregularities in the conduct of sale in dispute? OPD

3. Whether the auction took place as a result of collusion between the D. H. and the auction purchaser OPD

4. Whether the decree was inexecutable without the notification of the Registrar u/s. 63 of the Act? OPD

5. Whether the objections covered under issues Nos. 3 and 4 cannot be taken at this stage? OPD.

6. Relied.

3. The executing Court accepted the objections of the judgment-debtor as it came to the conclusion that there has been material irregularity in the conduct of the sale and under issue No. 4 it was held that the decree was inexecutable without the certificate of the Registrar under Section 63 of the Act though on issue No. 3 it was held that there was no collusion or fraud between the decree holder and the auction-purchasers as alleged by the judgment-debtor. The objection petition was held to be one under section 47 of the Code of Civil Procedure and consequently within time. In appeal all these findings of the executing court have been affirmed and consequently the appeal filed by the auction-purchaser was dismissed. On the last objection of the judgment-debtor, which was the subject matter of issue No. 4, the lower appellate Court has observed :-

'In this case, there is no evidence that the award on the basis of which execution application was filed was accompanied by any certificate of the Registrar under Section 63 of the Punjab Co-operative Societies Act, 1961. I have gone through the record, execution application filed by the decree-holder. There is only a copy of the award attached to the execution application but there is no certificate of the Registrar with the award as envisaged by Section 63 of the Co-operative societies Act. Therefore, the execution application was not maintainable and hence the learned Judge who started the execution proceedings in pursuance of the execution application acted without jurisdiction.'

Feeling aggrieved against this, the auction-purchaser has filed this civil revision in this court.

4. Learned counsel for the petitioner vehemently contended that once the sale is conducted and confirmed, the same cannot be set aside on the grounds which were available to the judgment-debtor prior to its confirmation. According to the learned counsel, all these objection were available to the judgment -debtor under Order 21, Rule 90 of the Code of Civil Procedure and since the judgment-debtor failed to take these objections within the time prescribed, the same could not be taken under Section 47 of the Code of Civil Procedure. He particularly drew the attention of the court to the amendment to this Rule made by this Court which is to the following effect :-

'Provided further that no such sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted.'

5. According to the learned counsel,all these objection as to the non-compliance of Order 21, Rule 54, Order 21, Rule 66, C.P.C. as well as to the non-compliance of Section 63(a) of the Punjab Co-operative Societies Act, 1961, were available to the judgment-debtor and since he failed to take the same within the time prescribed, the sale which has bee confirmed could not be set aside on these objection subsequently under Section 47 of the Code of Civil Procedure. In support of this contention, he relied upon Dhirendra Nath v. Sudhir Chandra AIR 1964 SC 1300: Gauri v. Ude AIR 1942 Lah 153(FB); Firm Wasti Ram v. Mt. Ganeshi AIR 1939 Lah 405 and Mangal Prasad v. Krishna Kumar AIR 1977 All 147. On the other hand, the learned counsel for the judgment-debtor relied upon Rattan Singh v. Rupar W. Co-perative Society 1969 Cur LJ 239 and Ramanna v. Nallaparaju AIR 1956 SC 87.

6. I have heard the learned counsel for the parties at great length, In Dhirendra Nath's case (supra) it has been held that where a judgment-debtor who received the notice of the proclamation, did not attend at the drawing up of the proclamation or did not object to the non-compliance with Section 35 of the Bengal Money Lenders Act and by non-observance of the provision of that section no substantial injury was caused to the judgment-debtor, the sale is not liable to be set aside in an application under Order 21, Rule 90, Section 35 of the Bengal Money Lenders Act is provision relating to the content of the sale proclamation and its effect if to amend or supplement Order 21, Rule 66(2)(a) which directs the court to specify in the sale proclamation 'the property to be sold.' Any objection regarding non-compliannce with Section 35 in specifying the property to be sold is a defect in the sale proclamation within the meaning of the second proviso to Order 21, Rule 90. If follows that an objection that the sale proclamation did not conform to Sec 35 Bengal Money Lender Act cannot avail a judgment-debtor in an application under Order 21, Rule 90, C.P. C.. If he was present at the drawing up of the sale proclamation and did not raise any such objection at that time nor can it avail a judgment-debtor who after receiving notice did not attend at the drawing up of the sale proclamation at all. In this case, a distinction has been made as to what is an irregularity and what is nullity. In that context it has been observed that the safest rule to determine what is an irregularity and what is nullity is to see whether the party can waive the objection; if he can waive it amounts to an irregularity, if he cannot it is a nullity. A Waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none. On the basis of this authority, the contention of the learned counsel for the petitioner may be correct as regard the objection relating to the non-compliance of O. 21, Rule 54 and Order 21, Rule 66, C.P.C. but as regards the objection for not obtaining the certificate under Section 63 of the Punjab Co-operative Societies Act, 1961 this authority rather helps the judgment-debtor particularly when it has been observed therein that 'an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none.'

7. In the present case, it is a statutory requirement that before an award was to requirement the before an award was to be executed as a decree o a Civil Court, a certificate signed by the Registrar, or any person authorised by him in this behalf is a sine qua non. Section 63(a) of the Punjab co-operative Societies Act, 1961, reads as under :-

'63 Execution of certain decision, awards and orders. Every decision award or order duly passed under Ss. 54, 56, 62, or 69 shall, if not carried out-

(a) on a certificate signed by the Registrar, or any person authorised by him in this behalf, be deemed, to be a decree of a civil Court ad shall be executed in the same manner as decree of such Court'.

8. Even in Mangal Prasad's case (AIR 1977 All 147)(supra) it has been held that where the obje-ction taken in the application related to non-compliance of formalities of attachment provided by Order 21, Rule 54, inadequacy of price, insufficient number of bidders, on account of proclamation not being done in a proper manner, conduct of sale not being in an honest and bone fide manner and that facts and circumstances enhancing the value of the site were either not mentioned in the proclamation or taken into consideration, it would be an application under Order 21, Rule 90 and not under Section 47. Under these circumstances and on the basis of said Supreme Court judgment, the objections filed by the judgment-debtor, which are the subject matter of issue No. 2 are held to be not available to him in the objection petition under Section 47 of the Code of Civil Procedure. However in the present case the most important question is the subject-matter of issue No. 4.

9. According to the learned counsel in view of Gauri's case (AIR 1942 Lah 153)(supra), a Full Bench judgment of the Lahore High Court, even such an objection as contemplated by issue No. 4 is also not available to the judgment-debtor under Section 47 of the code of Civil Procedure. In that case the question referred to the Full Bench was, 'If property is attached in execution proceedings and if the judgment-debtor has objection to raise on the ground that the property is not liable to attachment or sale, is he entitled to wait until sale has taken place and then have the sale set aside on the ground that the court has no jurisdiction to sell the property?' While dealing with this question it has been observed therein as that:--

'The judgment-debtor cannot ignore the auction sale on the ground that the Court had no jurisdiction to sell, the property, because the Court would have jurisdiction to sell,unless and until the facts showing that the property is exempt from attachment or sale are alleged and proved by the judgment-debtor. If the judgment-debtor fails to allege before the sale facts entitling him to claim exemption under Section 60, C. P.C. which lie within his knowledge and the burden of proving which would naturally rest on him, it cannot be said that the Court had no jurisdiction to sell the property and hence the sale was a nullity. Therefore, if a judgment-debtor does not raise his objection to the sale before the property is sold, his objection to the sale ability of the property taken after the sale, must be taken to be tantamount to an application to set aside a sale and as such governed by Article 166 is clearly the auction sale. There can obviously be no question of setting aside a sale, after it has been confirmed and becomes absolute under Order 21, Rule 92, C.P.C.'

10. This Case is clearly distinguishable on the facts of the present case. The objections available to the judgment-debtor under Section 60 of the Code of Civil Procedure are of such a nature which could easily be waived by the judgment-debtor and therefore, any sale in violation of those provision could not be held to be a nullity. In the present case an award couldnot be executed under Section 63(a) of the Punjab Co-operative Societies Act, 1961 as a decree of the civil court unless a certificate was obtained from the Registrar of the Co-operative Society. It has been found as a fact by the Courts below that there is no evidence that the award on the basis of which the execution application was filed was accompanied by a certificate of Registrar. The learned counsel for the auction purchaser tried to explain that the said certificate maybe with the original application filed for the first time for execution of the award. I am afraid, no such effort to produce that file was either made in the executing Court or any such application was made in this court. Rather the learned lower appellate court has categorically stated that he had gone through the record of the execution application filed by the decree-holder and there was only a copy of the award attached thereto but no certificate of the Registrar as envisaged by Section 63(a) of the Punjab Co-operative Societies Act, 1961 was there. In the absence of such a certificate, the award was not executable as a decree of the Civil Court.

It has been so held by this Court in Rattan Singh's case (1969 Cur LJ 239)(supra). Para 4 thereof reads as under :-

'The next point urged is that under Section 63 of the Act, the decision or award made under Secs. 54, 56, 62 and 68 of the Act can be executed in a civil Court only on a certificate signed by the Registrar, or any person authorised by him in this behalf, as it is that certificate which makes the decision or the award a decree of a civil court which is executable in the same manner as the decree of such Court. Till that certificate is issued by the Registrar, the decision of award does not become a decree of a civil court and cannot be executed. This objection is based on Section 63 of the Act, and there is substance in it. The learned counsel for the respondent decree-holder has admitted that no certificate from the Registrar was obtained. In my opinion therefore, the Society cold not make an application for execution of the award, dated 10th of July, 1962, as modified by order under Section 69 of the said Act without the certificate prescribed in Section 63(a) of the Act. The court of the Senior Subordinate Judge, Rupar, therefore, did not get any jurisdiction to execute the award as it had not become a decree of a civil Court, which alone could be executed by him. The execution proceedings before the learned Senior Subordinate Judge are wholly without jurisdiction.'

11. As a result of the above discussion, this objection which is a subject matter of issue No. 4, is clearly covered by Section 47 of the Code of Civil Procedure as it relates to the Execution of the decree by the Court which had no jurisdiction to execute the same in the absence of a certificate as contemplated under Section 63(a) of the Punjab Co-operative Societies Act, 1961. Consequently, all these proceedings culminating in the confirmation of the sale are void and without jurisdiction.

12. Turning to issue No. 1 regarding limitation, it will be seen that the limitation for such an objection petition under Section 47 is governed by Article 181 of the Limitation Act, 1908, which is now equal to Article 137 of the Limitation Act, 1963. It has been in Ramanna's case (AIR 1956 SC 87)(supra) that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by Article 181 and not by Article 166 of the Limitation Act, 1908. Thus the objection petitioner in this case was within time.

13. For the reasons recorded above, this petition fails and is dismissed with no order as to costs.

14. Petition dismissed.


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