Skip to content


Mubarak Begam and anr. Vs. Sushil Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 11 of 1954
Judge
Reported inAIR1957Raj154
ActsCode of Civil Procedure (CPC) , 1908 - Sections 50 and 151 - Order 21, Rules 90, 92 and 93; Muhammadan Law; Limitation Act, 1908 - Schedule - Article 166; Evidence Act, 1872 - Sections 114
AppellantMubarak Begam and anr.
RespondentSushil Kumar and ors.
Appellant Advocate Hukumchand, Adv.
Respondent Advocate B.K. Acharya and; Shrinarain Purohit, Advs. (for No. 2) and;
DispositionAppeal allowed
Cases ReferredIn Ballabhdas v. Sobhaji
Excerpt:
- - both these widows presented further applications on 24th of august, 1954. in the application filed by mubarak begam, it was further stated that she and the decree-holder had come to a mutual compromise whereby the decree was completely satisfied and that this may be verified from the decree-holder's counsel. this is clear from section 50 of the civil procedure code which provides that 'where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representatives of the deceased. we find that in the application dated 16th july, 19s4, filed by the appellant, mubarak begam, it was clearly mentioned that mt. order 22, rule 12 of the civil procedure code clearly provides that.....dave, j.1. this is a first appeal in execution proceedings against the order of the civil judge, bikaner, dated the 3rd september, 1954, and arises in the following circumstances :--2. on 26th of april, 1953, respondent no. 1, sushil kumar, who is a minor, presented an execution application through his next friend and guardian mt. gitabai, who is his mother, for execution of a decree dated 12th july, 1951, against the judgment-debtor zahur ahmad. the decree was for rs. 9,525-14-0 and the said amount was to be realised from the sale of the mortgaged property which consisted of a house situated in mohalla gusaiyan at bikaner. this property was put to auction by the sales amin from 4th january, 1954, to 7th january, 1954. on the last date, i.e., 7th january, 1954, the highest bid was that of.....
Judgment:

Dave, J.

1. This is a first appeal in execution proceedings against the order of the Civil Judge, Bikaner, dated the 3rd September, 1954, and arises in the following circumstances :--

2. On 26th of April, 1953, respondent No. 1, Sushil Kumar, who is a minor, presented an execution application through his next friend and guardian Mt. Gitabai, who is his mother, for execution of a decree dated 12th July, 1951, against the judgment-debtor Zahur Ahmad. The decree was for Rs. 9,525-14-0 and the said amount was to be realised from the sale of the mortgaged property which consisted of a house situated in Mohalla Gusaiyan at Bikaner. This property was put to auction by the sales Amin from 4th January, 1954, to 7th January, 1954. On the last date, i.e., 7th January, 1954, the highest bid was that of one Gopalal Goswami for Rs. 8,500. It was represented to the Court that the bid was low and, therefore, the executing Court ordered the Sales Amin to auction the property again on 8th of January, 1954. On that date also the highest bid was Rs. 8,500 and the bidder deposited l/4th amount of auction price. The judgment-debtor, however, made an application to the Court that the property was very valuable, that the bid was very low and, therefore, it should be got- auctioned again. This request was allowed by the Court with the consent of the decree-holder and the property was again put to auction from 26th May, 1954, to 29th May, 1954. The report of the Sales Amin shows that on all the said four dates, the only bidder was Shrinarain Purohit, Advocate, who is respondent No. 2 in this Court. His bid was for Rs. 4,000.

It appears from the record of the executing Court that the Sales Amin made a report of the said auction on 29th May, 1954, and it was accepted by the learned Judge. It may be mentioned here that the order of the Court accepting the bid is written by a clerk and dated 29th May, 1954. The Presiding Officer did not put any date below his signature and the order-sheet shows that the bid was accepted on 31st May, 1954, the day intervening, i.e., the 30th of May being a holiday. On the same day the Court fixed 16th of July, 1954, for confirmation of the sale. The order-sheet shows that the auction purchaser deposited Rs. 1,000 on 31st of May, 1954, and the remaining amount of Rs. 3,000 on the 3th of June, 1954.

3. It is common ground between the parties that the judgment-debtor, Shri Zahur Ahmad, died on the night between the 4th and 5th June, 1954, i.e., on the night prior to the day on which Rs. 3,000 were deposited by the auction purchaser.

4. On the 18th of July, 1954, just before the Court was going to confirm the sale, two widows of the deceased judgment-debtor, namely, Mubarak Begam and Masha Alla Begam, presented separate applications for setting aside the sale under Order 21, Rule 90 of the Civil Procedure Code. It was alleged that several irregularities were committed in conducting the sale and that the highest bid, which was accepted by the Court, was grossly inadequate. It was pointed out that even the previous bid of Rs. 8,500 of Gopallal was not considered adequate by the Court.

In the application filed by Masha Alia Begam fraud was also pleaded. Both these widows presented further applications on 24th of August, 1954. In the application filed by Mubarak Begam, it was further stated that she and the decree-holder had come to a mutual compromise whereby the decree was completely satisfied and that this may be verified from the decree-holder's counsel. It was also mentioned that she was tendering Rs. 200 to be given to the auction purchaser which was 5 per cent, of his auction bid and that the sale should, therefore, be set aside under Order 21, Rule 89 of the Civil Proce-dure Code.

The decree-holder's counsel, Shri Madan Swa-roop, Advocate, also presented an application in the Court on the same date, i.e., 24th August, 1954, saying that the decree-holder had received the entire amount of the decree from Mubarak Begam through Mt. Kaniz Banu and that the file should be consigned to record after verification. It appears that this application was verified by the Court from Shri Madan Swaroop, Advocate.

The auction purchaser, however, continued to contest the applications of Mubarak Begam and Masha Alla Begam. The executing Court, after hearing the arguments of the parties, dismissed the applications of Mubarak Begam and Masha Alia Begam on 3rd of September, 1954, on the ground of limitation and confirmed the sale; hence they have come to this Court

5. Learned counsel for the appellants has urged that the deceased judgment-debtor, Zahur Ahmad, had not only left two widows as heirs, but he had also left a sister, Mt. Kaniz Banu, that this fact was mentioned in the appellants' application dated 16th July, 1954, that it was not contested by the other party and thus all the heirs of the deceased not having been brought on the record, the sale could not be confirmed by the executing Court.

It is next urged that although the period of limitation for setting aside the sale under Order 2l, Rules 89 and 90 of the Civil Procedure Code is 30 days from the date of the sale, according to Article 166 of the Indian Limitation Act, the executing Court ought to have computed the period from 14th July, 1954, when the appellants came to know of the fraud. According to learned counsel, both the appellants were not aware that their husband's property was being put to auction.

The decree-holder did not implead them as their husband's legal representatives, although heknew that he was dead on the night between 4thand 5th June, 1954. It the decree-holder had tried to implead them as legal representatives of the judgment-debtor before the expiry of the period of 30 days from the date of the sale, they would have presented their applications in time. The knowledge of the sale was concealed by the decree-holder from the appellants,

The appellants came to know of the sale on 14th of July, 1934, and they presented their applications on 16th July, 1934, and hence the period of limitation ought to have been computed from the time when the fraud first became known to the appellants, who have been injuriously affected thereby. Learned counsel has tried to invoke the provision of Section 18 of the Indian Limitation Act.

6. Lastly, it has been contended by learned counsel that in the present case, respondent No. 2 had himself made a bid of Rs. 5,800 about the same property when it was auctioned earlier on 5th of January, 1954, that when the property was next put to auction between 26th May, 1954, and 29th May, 1954, there was collusion between the decree-holder, the auction purchaser and the Sales Amin, with the result that nobody except respondent No. 2 came to the site to make a bid and the sale was thus fraudulently finished in favour of respondent No. 2 by the Sales Amin.

It has also been pointed out that although the time fixed by the Court for auctioning the property was 3. to 7 p.m., the Sales Amin did not reach the site before 5 p.m. He did not stay there, after 6-30 p.m. It is contended that this was purposely done so that other bidders may not be able to come to the site, that this was a clear fraud, which did not require further proof and the executing Court ought not to have accepted the bid. It is prayed that this Court should set aside the sale.

7. Learned counsel for the opposite party, on the other hand, has urged that according to Article 166 of the Indian Limitation Act, the period of 30 days began to run from the date of the sale and that Section 18 of the Limitation Act could not be invoked by the appellants because it cannot be said that 'the decree-holder had committed any fraud simply because he did not implead the legal representatives of the judgment-debtor as parties within the period of 30 days.

According to learned counsel it was not incumbent upon the decree-holder to bring the legal representatives of the deceased judgment-debtor on record within the period of 30 days according to law. He has, therefore, tried to support the executing Court's order on the basis of limitation and urged that this Court has got no authority to enter into the matter since the appellants' applications were time-barred. Thus from the arguments of both the parties, the following three points emerge for the determination of this Court:--

(1) Whether the confirmation of the sale could be validly made without bringing the legal representatives of the deceased judgment-debtor on record.

(2) Whether the period of limitation in the present case can be extended by virtue of the provisions of Section 18 of the Indian Limitation Act.

(3) Whether there is any inherent power in a Court to set aside the sale in case Order 21, Rules 89 and90 are not applicable and the Court is convinced that a fraud has been perpetrated in the sale of the property.

8. Regarding the first point, it may be observed that as soon as a judgment-debtor dies, his property devolves upon his heirs and, therefore, if a decree-holder wants to satisfy the decree from the property which is inherited by them, then he must bring them on record as legal representatives of the judgment-debtor and so long as they are not impleaded, he cannot take steps which would affect their rights adversely.

A decree-holder cannot continue his application against a dead person. In a case, where there are more than one judgment-debtor and one of them Is dead and the decree-holder wants to proceed against the property of other judgment-debtors, it may not be absolutely necessary for him to bring the legal representatives of the deceased judgment-debtor on record. But if there is only one judgment-debtor, or even if there are more than one judgment-debtor and the decree-holder wants to proceed against the property of the deceased judgment-debtor, then he must bring on record the legal representatives of the deceased judgment-debtor.

This is clear from Section 50 of the Civil Procedure Code which provides that 'Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased.' The language of this section is no doubt permissive in the sense that the framers of the 'Code have used the word may but this seems to have been done for the reason that no decree-holder is bound to proceed against a legal representative of a deceased judgment-debtor.

It is for him to choose whether he should proceed with the execution of the decree after the death of the judgment-debtor. But if he chooses to proceed with his application, then he must apply to the Court to bring the legal representative of the deceased on record. In other words, if the decree-holder wants to continue the proceedings after the death of the judgment-debtor, then the word 'may 'will have the force of 'shall' because, in our opinion, he cannot continue his proceedings against a dead person. This view finds support from Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib, AIR 1936 Mad 205 (FB) (A). In that case it was observed as follows:--

'The language of Section 50 is permissive. But this as Ramesam, J., has pointed out in Raghunathaswami v. Gopauj Rao, AIR 1922 Mad 307 (B), does not mean that recourse to the section may not be obligatory. If a decree-holder does not desire to proceed with the execution after the judgment-debtor's death or if there are other parties on record against whom the decree can be executed, there will be no occasion to have recourse to Section 50.

But if execution of the decree is necessary against the legal representative of the deceased judgment-debtor, the decree-holder has no option but to proceed under Section 50. He must apply to the Court to execute the decree against the legal representative and notice must issue to the legal representative as required by Order 21, Rule 22.' We respectfully agree with this observation.

9. Now, in the present case, it is clear from the record that Mt Kaniz Banu, sister of the de-ceased Zahur Ahmad, who is respondent No. 3 beforeus was not implended as her brother's legal representative in the executing Court before the confirmation of the sale. Under the Muhammadan Law, a sister would be both an heir and a residuary along with the widows of the deceased. The executing Court has not dealt with this point in its judgment at all.

We find that in the application dated 16th July, 19S4, filed by the appellant, Mubarak Begam, it was clearly mentioned that Mt. Kaniz Banu was a sister and heir of the deceased along with the applicants. The fact of respondent No. 3 being the real sister of the deceased Zahur Ahmed has not been contested before us. Under the circumstances, the confirmation of the sale in her absence cannot be justified.

It may, however, be pointed out that only this defect would not invalidate the sale dated 29th May, '1954, because Zahur Ahmad was alive at that time. The validity of the proceedings upto the date Zahur Ahmad was alive cannot be challenged on this reason. It is only the proceedings after his death which can be challenged on this ground.

10. This brings us to next question whether the appellants' applications can be considered to be within limitation and whether the sale dated 29th May, 1954, can be set aside on the ground of material irregularity or fraud in conducting the sale. It is quite clear from the language of Article 166 of the Indian Limitation Act that the period of 30 days which is prescribed thereby for applications to set aside a sale in execution of a decree runs from the date of the sale.

This period, therefore, cannot be computed from the date a legal representative is brought on record, as urged by learned counsel for the appellants. Order 22, Rule 12 of the Civil Procedure Code clearly provides that ''nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.' Thedecree-holder, therefore, is not hound to bring the legalrepresentatives of a deceased judgment-debtor on record within 30 days.

It may also happen in certain cases, as urged by learned counsel for the respondent, that a judgment-debtor may die on the 28th or 29th day after the sale of the property and thus there may be only one day left for presenting an application for setting aside the sale under Order 21, Rules 89 and 90 of the Civil Procedure Code. A decree-holder, under such circumstances, cannot possibly bring the legal representatives of the deceased judgment-debtor on record in a day or two. We cannot, therefore, presume that simply because a decree-holder does not implead the legal representative of a judgment-debtor within time to enable him to present an application under Order 21, Rules 89 or 90 of the Civil Procedure Code that he has committed a fraud.

In the present case, learned counsel has urged that the sale was accepted by the Court on 31st May, 1954, that the judgment-debtor died on 5th June 1954 and if the decree-holder had impleaded the appellants as legal representatives even within a week, they could have ample time to file their applications under Order 21, Rule 89 or 90, C. P. C. It is suggested that since he did not bring them on record till the whole time of 30 days had run out, it should be presumed that he failed to do so purposely in order to commit a fraud and so the period of limitation'should be computed from 14th July 1954 when theappellants came to know of the sale from other sources.

We have given due consideration to this argument, but as pointed out above, we cannot presume fraud on the part of the decree-holder simply, because he did not care to bring the appellants on record to enable them to present their applications within 30 days, because, in our opinion, he was not legally bound to do so. The law did not cast upon him a duty to inform the applicants within . 30 days that their husband's property had been sold and that they should present applications to set aside that sale, if they so desired. The provisions of Section 18 of the Indian Limitation Act, therefore, do not come to the appellants' aid and point No. 2 is decided against the appellants.

11.We have now to consider the last point. It may be mentioned that Order 21, R. 90, C. P. C. makes a specific provision for an application to set aside a sale on the ground of a material irregularity or fraud in publishing or conducting it and Article 166 of the Limitation Act provides the time within which such an application should be made. If no such application is made within time, then ordinarily, it would not be proper for any Court to use its inherent powers to set aside the sale.

Rut if the Court comes to the conclusion that, in fact, there has been no auction and the sale is a nullity, then in that case, the Court would have the power to set aside that sale even though there may be no application under Order 21 Rule 90, C. P. C. In the present case, we find from the proceedings conducted by the Sales Amin from 4th January, 1954 to 8th January 1954 that when the property in dispute was put to auction, the highest bid made by Gopal-lal Goswami was Rs. 8.500/-.

We further find that respondent No. 2 was also one of the bidders and his bid on 5th January 1954 was Rs. 5,800/- i.e. Rs. 1,800/- more than the amount for which he has purchased the same property a few months after. It also appears from the order-sheet of the executing Court dated 8th January 1954 that even the bid of Rs. 8,500/- was not considered sufficient by that Court and, therefore, it directed the property to be put to auction again.

It is significant that even the decree-holder did not consider the amount of Rs. 8,500/- as an adequate price for the property even though it was more than twice the amount for which the sale has been knocked down in favour of respondent No. 2 later. It is amazing and beyond comprehension that the same learned Judge who considered Rs. 8,500/- to be inadequate price for this property, should have allowed the sale to be completed for Rs. 4,000/-without giving any reason.

We are inclined to believe that the learned Judge did not apply his mind at the time of completing the sale and the Sales Amin somehow got his signature on the report of 29th of May 1954 and the learned Judge then did not care to rectify the error. The learned Judge says in his judgment that he had signed the order on 31st May 1954, but the date on his signature is 29th May 1954, which shows that the Sales Amin perhaps managed to get his signature on 29th May 1954 on the report and the learned Judge has tried to justify that mistake having once committed it inadvertently.

It further appears from the report of the Sales Amin that when the property was put to auction on the subsequent date i.e. 26th May 1954 to 29th May 1954, the time appointed by the Court for the auction was 3 to 7 p.m.; but the Sales Amin never went to the site at the appointed time nor did he remain there for fall time. We need not refer to the previous dates on which no time was noted.

It would suffice to say that on 29th of May 1954, the Sales Amin went to the site at 5-30 p.m. and came away at 6-30 p.m. This clearly shows that if any bidders went to the site at 3 p.m., they would not care to remain there waiting for about 2 1/2 hours. They cou!d not be expected to stay there for such a long time and if some people appeared there, they must have returned thinking that there would be no auction.

Similarly, if anybody came late after 6-30, he might not have found anybody at the site. This shows that the Sales Amin did not care to carry out the orders of the Court as he was directed to do and he went lute and came away early because he was in collusion with the auction purchaser.

12. It may be further pointed out that when the Court had directed the property to be auctioned again on 8th January 1934, it had passed a clear order that in future the auction should be called above the bid of Rs. 8,500/- so, when the property was put to auction on 26th May 1954, the Sales Amin should have called for bids above that amount. But his report shows that on all these days i.e. 26th May 1954 to 29th May 1954, no one except respondent No. 2 called his bid and he put it at Rs. 4,000/-.

We find it impossible to believe that nobody else would be present at the site. The Sales Amin has not even cared to mention in the report or in the list of bids if anybody else was present. He has simply noted the bid of respondent No. 2 and then proceeded to report to the Court that since there was no other bidder, he had knocked down the sale in his favour. The list of bids is not signed by anybody else present there. The names of the those present, if any, are not mentioned therein. It is doubtful if others were present.

Even by inquiry, it cannot now be said for certain if anybody was present, when no name is mentioned. If any inquiry is ordered, parties may name whomsoever they like and it would be well-nigh impossible for the Court to come to a definite finding as to which of them was present and whether they made any bid. The absence of any name other than that of respondent No. 2 even leads one to suspect that there might have been no bidding at all and the report might have been made by the Sales Amin just to oblige respondent No. 2 for some reasons best known to both of them.

We, therefore, hold that this is not a case of mere irregularity or fraud in conducting the sale but the sale was null and void since there was no public auction at all. Order 21, Rule 90, provides for applications to set aside sales which are not conducted regularly. It does not contemplate an application for setting aside a void sale, though if such an application is made under that rule, the Court would be competent to enquire into the same and decide it.

What we mean to say is, that if it is brought to the notice of the Court at any time, before orafter the confirmation of the sale, but before itbecomes functus officio, that the sale was a nullity, then apart from Order 21, Rule 90 of the Civil Procedure Code, it can use its inherent powers under Section 151, C. P. C. and prevent the abuse of its process and such an application would not be barred by Article 166 of the Indian Limitation Act.

In Ballabhdas v. Sobhaji, AIR 1948 Nag 52 (C), the decree-holder had applied to the executing Court to order the auction of the judgment-debtor's property at the Court house at Khandwa but the Judge rejected that prayer and ordered the sale to be carried out at the spot. A proclamation was accordingly prepared and signed by the Judge but it was uot executed. The Court then ordered another proclamation to be issued and the property to be sold on 1st September, 1944.

In this proclamation, the clerk changed the time and place of sale i.e. the place now mentioned was the court-house at Khandwa. The sale was held on 1st September, 1944 and knocked down in favour of decree-holder who had bid by permission of the Court and who was the highest bidder. The judgment-debtor did not file any application for setting aside the sale and so it was confirmed on 7th October 1944. On 3rd November 1944 the judgment-debtor presented application for setting aside the sale under Sections 47 and 151, C. P. C.

13. It was held that

'the practice of fraud on a Court is a serious matter and it must render void everything which is founded on such fraud. It is not only within the power of the Court but in fact it is the duty of the Court to take notice of such fraud whenever detected and whenever it is brought to its notice. .. .'

14. It was also held that 'Article 166 of the Limitation Act does not apply when the sale is void or a nullity.'

15. In the present case the time and venue of sale was not changed in the sale proclamation, but a more serious fraud was committed because the Sales Amin went to the spot long after the appointed time, came away much earlier than the fixed hour and made a report about an auction when no public auction in the true sense of the word was made and the sale was knocked down in favour of a purchaser for an amount which was much less than the last bid he had made and which was less than hall the highest bid earlier made and when the Sales Amin and the purchaser both knew that even the previous high bids were not considered adequate by the Court.

There can be no clearer proof of collusion between the Sales Amin and the auction purchaser and we are really surprised that the executing Court failed to see through this game of fraud which was perpetrated upon the Court. A public auction is an open sale where all persons make their bids. The law wants the property of the judgment-debtors to be sold by public auction so that all persons interested in the purchase may be able to make their bids and the property of the judgment-debtor may bring a fair price.

A sale, where only one person makes a bid and there is no other bid because other persons are unable to come on account of a trick on the part of a Sales Amin, or collusion between a Sales Amin, and the so-called auction purchaser, is, in fact, no auction at all. It is a sort of private sale betweena Sales Amin and an auction purchaser and it is only given the colour of a public auction.

This was, therefore, not a mere irregularity or fraud in publishing or conducting the sale; but it was in fact a fraud on the Court, since there was in fact no public auction and the Court was falsely made to believe that there was a public sale. Therefore, in a case like this where there has been no public auction in fact and the reported auction is a mere make-believe, a sham or mockery and the matter is brought to the notice of the Court by the legal representatives of the judgment-debtor, before or after the confirmation of the sale, then, the Court, unless it has become functus officio, will have, in our opinion, power to use its inherent powers and refuse to confirm the sale or to cancel the sale if the sale has been confirmed, in order to prevent the abuse of the process of the Court, even though an application is not made by the judgment-debtor under Order 21 of Rule 90 of the Civil Procedure Code. We are satisfied that this is a fit case in which we must use our inherent powers under Section 151, C. P. C. to prevent the abuse of the process of the Court.

16. We, therefore, allow the appeal and setaside the order of the executing Court. We also set aside the order of confirmation of the sale dated 3rdSeptember, 1954 and the orders accepting the saledated 29th May 1954 and 31st May 1954. As thedecree has been satisfied, the execution will bestruck off in full satisfaction. The auction being acomplete fraud on the Court, the auction purchaseris not entitled to get anything.

The amount to be paid to the auction purchaser,if deposited by the appellants, will be returned tothem by the executing Court. The appellants willget their costs in this Court from respondent No. 2since it is he who has mainly contested the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //