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Mst. Kariman Bai and ors. Vs. Laxman Lal Ram Pratap, Kota - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 1 of 1978
Judge
Reported inAIR1978Raj120; 1978(11)WLN28
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 115 - Order 41, Rule 6(2)
AppellantMst. Kariman Bai and ors.
RespondentLaxman Lal Ram Pratap, Kota
Appellant Advocate Dalip Singh, Adv.
Respondent Advocate D.S. Shishodia, Adv.
DispositionPetition dismissed
Cases ReferredSatyanarayanamma v. Nageswara Rao. In
Excerpt:
.....at later stage is misconceived.;there is a good deal of difference between the stage before the sale is held and the stage after the sale is held for in the latter stage, the rights of third parties would come in, and there are bound to be other complications. it is for this reason that the sub-rule advisedly fixed the time when the application should be made, that is, when an order has been made for the sale of immoveable property.;an application under order 41, rule 6(2), cpc has to be filed when an order for sale has been made. hut before the sale has been actually knocked down in favour of the highest bidder and 25 per cent of the sale money has been deposited.;the present application of the petitioner under the provisions of order 41 rule 6(2) of the code of civil procedure was..........be made therunder thereafter. there is a good deal of difference between the stage before the sale is held and the stage after the sale is held, for in latter stage, the rights of third parties would come in, and there are bound to be other complications. it is for this reason that the sub-rule advisedly fixed the time when the application should be made, that is, when an order has been made for the sale of immovable property. the learned subordinate judge is clearly wrong in thinking that the expressions 'order for sale' in order 41, rule 6 (2), civil p. c. includes the holding of the sale and the confirmation thereof.14. explanation ii to section 47, cpc provides that (a) for the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed.....
Judgment:
ORDER

P.D. Kudal, J.

1. This revision petition is directed against the order of the learned District Judge, Kota dated 5th Dec. 1977.

2. At the time of arguments regarding the admission of the revision petition. Mr. Shishodia put in appearance on behalf of the respondent, and opposed the admission of the revision petition, The learned counsel for the parties requested that the file of the appeal filed by Mst. Kariman Bai & Others, which is pending before this Court, may also be called for and perused. Accordingly, the file S. B. C. First Appeal No. 102 of 1974 was called for and perused.

3. Relevant facts, which are necessary for the disposal of this revision petition, are that the plaintiff non-petitioner M/s. Laxman Lal Ram Pratap filed a suit for realisation of the mortgage amount against the petitioner. The trial Court, on 13th Feb. 1974, decreed the suit for a sum of Rs, 15,000/- with interest and costs. The judgment-debtor thereafter filed an appeal bearing No. S. B. Civil First Appeal No. 102 of 1974. It was admitted on 31st July, 1974. On 20thDecember, 1974, the trial Court passed a final decree. The property in dispute was auctioned on 11th April, 1977. The petitioners thereafter filed an application under Order 41, Rule 6 (2) of the Civil P. C. before the executing Court on 29th July, 1977, praying that the confirmation of the sale be stayed as an appeal was already pending before the High Court. The learned executing Court dismissed the application on 5th Dec. 1977. Feeling aggrieved against this order, the present revision petition has been filed before this Court.

4. On behalf of the petitioners, it was contended that the provisions of Order 41, Rule 6 (2), CPC are mandatory in character, and that the learned District Judge has erred in law in dismissing the application dated 29th July. 1977 filed under Order 41, Rule 6 (2), CPC. It was also contended that the learned District Judge has seriously erred in law in relying upon a case law which did not apply to the facts of the present case. The learned counsel for the petitioners relied on Gian Chand v. Manohar Lal AIR 1929 Lah 68 (2) and Laxman v. Ram Chandra, AIR 1964 Mys 232. The basic contention of the learned counsel for the petitioners is that the sale is complete only when an order under Order 21, Rule 92, CPC is passed confirming the sale, and prior to this it cannot be said that the sale has become final.

5. On behalf of the non-petitioner, it was contended that there is no infirmity in the order of the learned District Judge which may call for an interference on the revisional side. It was also contended that the learned counsel for the petitioners has not succeeded in establishing that the learned lower Court acted illegally and with material irregularity in exercise of its jurisdiction in dismissing the petitioners' application under Order 41, Rule 6 (2), CPC. It was also contended that the ruling reported in Gian Chand v. Manoharlal AIR 1929 Lah 68 (2) has not been followed by the same High Court in the subsequent rulings. Reliance was placed on Nur Din v. Bulaki Mal & Sons AIR 1931 Lah 78, Jetha Mal v. Punjab & Sindh Bank Ltd., AIR 1932 Lah 525 and Hoshnak Ram v. Punjab National Bank AIR 1936 Lah 555. It was also contended that the other High Courts have also taken a similar view. Reliance was placed on Romya v. Bali Ram, AIR 1928 Nag 111 and Maung Ohn Tin v. P.R.M.P.S.R.M. Chettyar Firm AIR 1929 Rang 311. It was alsocontended that the Rajasthan High Court hag taken a similar view in Uda v. Balu Lal, ILR (1951) 1 Raj 698 : (AIR 1952 Raj 169). It was, therefore, contended that learned District Judge has acted in comformity with the decision of this Court, and it cannot be said that the learned lower Court acted illegally and with material irregularily in exercise of its jurisdiction resulting in failure of justice. Apart from the legal position regarding the maintainability of the revision petition, it was also contended by the learned counsel for the non-petitioner that in the First Appeal No. 102 of 1974, the petitioners have tried to delay the auction proceedings and the execution proceedings as much as they could. The attention of the Court was invited to the various proceedings and the stay applications under Section 151, CPC which were moved in that appeal by the appellant in that case. The learned counsel for the non-petitioner also contended that the revision petition is not maintainable as the auction purchaser has not been mi-pleaded as a party. According to the contention of the learned counsel for the non-petitioner, the auction purchaser was a necessary party, and non-impleading of the auction purchaser in the present revision petition should be construed as fatal, and on this score alone the revision petition deserves to be dismissed.

6. In rejoinder, the learned counsel for the petitioners has contended that in the facts and circumstances of the present case, the auction-purchaser is not a necessary party. It was contended that no interest of the auction purchaser is involved inasmuch as sale is not confirmed under Order 21 Rule 92, CPC. It was also contended that explanation 2 to Section 47, CPC does not apply to the facts and circumstances of the present case, and by no stretch of imagination it could be urged that non-impleading of the auction purchaser is fatal to the maintainability of the revision petition. It was also contended that even if the auction purchaser has any remote interest, then his interest could be protected under Order 41, Rule 6 (2), CPC.

7. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.

8. Order 41, Rule 6 (2), CPC provides that where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pendingfrom such decree, the sale, shall, on theapplication of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

9. In Gian Chand v. Manohar Lal AIR 1929 Lah 68 (2), it was held that the trial Court is bound to stay the sale when It is brought to its notice that the decree had been appealed against, even where the property has been sold, but the sale has not yet been confirmed, the rule applies.

10. In Laxman v. Ram Chandra AIR 1964 Mys 232, it was held that the provisions of Order 41, Rule 6 (2), CPC are attracted in all cases in which there is an order for the sale of immovable property in execution of a decree and that decree is under appeal. The word 'shall' occurring after the words 'the sale' in Rule 6 (2) which has to be given its natural and ordinary meaning does not, admit of any other interpretation than that the court to which an application is presented for the stay of the sale, has no option but to stay it. It was further held that the provisions of Rule 6 (2) are not complementary to those of Rule 5. Hence it cannot be said that the stay of the sale under Rule 6 (2) is not imperative.

11. In Nur Din v. Bulaki Mal & Sons (AIR 1931 Lah 78), it was held that the sale is complete when the property is knocked down to highest bidder. Jetha Mal v. Punjab & Sindh Bank Ltd., (AIR 1932 Lah 525) is also to the effect that the sale is complete when the highest bid is knocked down and when the Presiding Officer actually signed the last bid. In Hoshnak Ram v. Punjab National Bank (AIR 1936 Lah 555) it was held that sale is complete when property is knocked down to highest bidder. In Romya v. Bali Ram (AIR 1928 Nag 111) it was held that sale is complete when both bid is accepted and 25 per cent of the value is deposited.

12. In Maung Ohn Tin P. v. P.R.M.P.S.R.M. Chettyar Firm AIR 1929 Rang 311, it was held that the reasonably interpretation of Order 21, Rule 84, is that the officer conducting the sale shall be the person to declare the highest bidder to be the purchaser. In Uda v. Balu Ram (AIR 1952 Raj 169), it wag held that where the officer conducting the sale declares the highest bidder as the purchaser and the court also orders the deposit of 25 per cent of the purchase money, a subsequent order of the court ordering resale would amount to setting aside of the previous sale and would be appealable under Order XLIII, Rule 1 (j) of CPC.

13. In Satyanarayanamma v. Nageswara Rao, 1959 (2) Andh WR 439, it was held that when an order has been made for the sale of immovable property in execution of the decree against which an appeal is pending, the judgment-debtor could make an application for the stay of the holding of the same. Once that stage is allowed to pass, and the judgment-debtor did not apply to the Court under Order 41, Rule 6 (2), Civil PC, in time, but allowed the sale to be held, the stage at which the powers under Rule 6 (2) could be exercised has passed and no order could be made therunder thereafter. There is a good deal of difference between the stage before the sale is held and the stage after the sale is held, for in latter stage, the rights of third parties would come in, and there are bound to be other complications. It is for this reason that the sub-rule advisedly fixed the time when the application should be made, that is, when an order has been made for the sale of immovable property. The learned Subordinate Judge is clearly wrong in thinking that the expressions 'Order for sale' in Order 41, Rule 6 (2), Civil P. C. includes the holding of the sale and the confirmation thereof.

14. Explanation II to Section 47, CPC provides that (a) for the purposes of this section, a purchaser of property at a sale In execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

15. Taking into consideration the ratio decidendi of various rulings cited above, I have no hesitation in holding that an application under Order 41, Rule 6 (2), CPC has to be filed when an order for sale has been made, but before the sale has been actually knocked down in favour of the highest bidder and 25 per cent of the sale money has been deposited. I am fortified in my view by a decision of our own High Court reported in ILR (1951) 1 Rajasthan 698 : (AIR 1952 Raj 169) as Uda v. Balu Lal. and in (1959) 2 Andh WR 439 as Satyanarayanamma v. Nageswara Rao. In view ofthis legal position, the present application of the petitioner under the provisions of Order 41, Rule 6 (2) of the Code of Civil Procedure was misconceived as it was made at a much later stage.

16. Apart from this, this revision petition is also likely to be dismissed for not impleading the auction purchaser as a party to the petition. Explanation II to Section 47 of the Civil P. C. makes it abundantly clear that once the sale has been knocked down in favour of the highest bidder, the interest of the third parties is also involved, and the revision petition is liable to be dismissed for not having impleaded the auction purchaser.

17. For the reasons stated above, there is no force in this revision petition, which is hereby dismissed.


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