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Smt. Saidan Vs. ShamsuddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Execution Second Appeal No. 17 of 1967
Judge
Reported in1969WLN451
AppellantSmt. Saidan
RespondentShamsuddIn and ors.
DispositionApplication allowed
Cases ReferredGhinsilal v. Smt. Chandrawati Devi and Ors. and
Excerpt:
.....also made--whether s is an interested party and can maintain objection.;in the agreement of sale dated 11-4-1963 executed by the judgment-debtors in favour of shamsuddin and others it it stated that the latter paid a sum of rs. 2500/- in advance. this was corroborated by judgment-debtor, in his statement in court. i accordingly hold that shamsuddin and others are entitled to maintain an objection under order 21 rule 90 c.p.c. provided the conditions mentioned in it are fulfilled.;(b) civil procedure code - section 47 and order 21 rule 90--date of auction-sale being court holiday, auction adjourned by sale-amin--whether irregular.;the adjournment on 27-12.63 was really made by the sale amin on the ground that it was a court holiday and the peon did not exercise any discretion on..........transfer of property is entitled to apply under order 21 rule 89 c.p.c. in the agreement : of sale dated 11-4-63 executed by the judgment-debtors in favour of shamsuddin and others it is stated that the latter paid a sum of rs. 2500/- in advance. this was corroborated by rooda, judgment-debtor, in his statement in court. i accordingly hold that shamsuddin and others are entitled to maintain an objection under order 21 rule 90 c.p.c. provided the conditions mentioned in it are fulfilled.10. the executing court dismissed the objection on the ground that no substantial injury was caused to shamsuddin and others. they had entered into an agreement of sale on 11-4-63 for rs. 2500/- and the property was sold in favour of the auction purchaser on 28-1-64 for rs. 3600/-. the estimated price.....
Judgment:

Jagat Narayan, J.

1. This purports to be an execution second appeal by the auction-purchaser Smt. Saidan against an appellate order of the District Judge, Jaipur City, setting aside a sale m her favour which took place in execution of a money decree of Kesarlal and Laxmi Narayan against Rooda, Chhutan, Molya and Ram Dayal.

2. A house was attached in execution of the decree and was sold in favour of Smt. Saidan on 28-1-64 at an auction sale. Shamsuddin was one of the bidders at the auction. An objection purporting to be under Order 21 Rule 90 C.P.C. and Section 47 C.P.C. was filed by Shamsuddin, Mohammad Ismail, Amir and Salim-uddin alleging that there were material irregularities in conducting the sale which had caused them substantial injury.

3. The value of the house was shown as Rs. 2500/- in the sale proclamation The highest bid offered by Smt. Saidan was Rs. 3600/-. In the objection it was alleged that Shamsuddin, Mohammad Ismail, Amir and Salimuddin had entered into an agreement of sale of the house for a consideration of Rs, 2500/- with the judgment-debtors on 11-4-63 and possession had been delivered to them before the sale. It was also alleged that the consideration or at any rate the bulk of it had been paid before the auction sale.

4. The executing court entertained the objection under Order 21 Rule 90 despite the objection by the auction purchaser on the ground that Shamsuddin was a bidder at the auction. He relied on a decision of the Lahore High Court in Punjab National Bank v. Sunder AIR 1929 Lah. 673. The objection was however rejected on the ground that there was no irregularity in publishing and conducting the sale.

5. Against the above order Shamsuddin and others preferred an appeal in the court of the District Judge, Jaipur City, who allowed it holding that there was material irregularity in conducting the sale. He also relied on Punjab National Bank v. Sunder AIR 1929 Lah. 673 in holding that a bidder had sufficient interest in the property; to file an objection under Order 21 Rule 90 C.P.C.

6 Section 47 C.P.C has no application to the facts of the present case. No second appeal is maintainable against the appellate order allowing objection; under Order 21 Rule 90 C.P.C. This second appeal is therefore treated as a revision application.

7. The first contention on behalf of the applicant Smt. Saidan is that Shamsuddin had no locus standi to file an objection under Order 21 Rule 90 C.P.C. Two decisions were cited on behalf of Shamsuddin and others. The decision in Punjab National Bank v. Sunder AIR 1929 Lah. 673 does not support the view that a mere bidder of an auction is a persent whose interests are affected by the sale. The Punjab National Bank which bid at the auction held a charge on the property sold in that case and was affected by the sale in the capacity of a charge holder. In the other decision Bhupendra v. Jatindra AIR 1933 Cal. 788 the person filing an objection under Order 21 Rule 90 was mortgagee of the property after it had been attached and before it has been sold. He certainly had an interest in the immovable property which was sold at the auction. Neither of these two decisions can be taken to be an authority for the proposition that the bidder at an auction is a person whose interests are affected by the sale.

8. In the alternative it was argued on behalf of Shamsuddin and others that they had interst in the property as an agreement of sale was executed in their favour on 11-4-63 and they had been put into possession of it and they had a right to defend under Section 53A of the Transfer of Property Act.

9. Under Section 54 of the Transfer of Property Act it has been made clear that a contract of sale does not create any interest in immovable property. But the words used under Order 21 Rule 90 C.P.C. are wider and a person whose interests are affected by sale can file an objection. It was held in K. Mahalakshmi v. Venkata Bhaskara : AIR1968AP334 that any person who is interested in protecting the property on account of his being in possession or otherwise in pursuance of incomplete transfer of property is entitled to apply under Order 21 Rule 89 C.P.C. In the agreement : of sale dated 11-4-63 executed by the judgment-debtors in favour of Shamsuddin and others it is stated that the latter paid a sum of Rs. 2500/- in advance. This was corroborated by Rooda, judgment-debtor, in his statement in court. I accordingly hold that Shamsuddin and others are entitled to maintain an objection under Order 21 Rule 90 C.P.C. provided the conditions mentioned in it are fulfilled.

10. The executing court dismissed the objection on the ground that no substantial injury was caused to Shamsuddin and others. They had entered into an agreement of sale on 11-4-63 for Rs. 2500/- and the property was sold in favour of the auction purchaser on 28-1-64 for Rs. 3600/-. The estimated price of the property in the sale proclamation was also shown as Rs. 2500/- and odd. The appellate court however set aside the sale on the ground that on one of the dates fixed for sale namely 27-12-63 it was the peon of the sale Amin who announced the adjournment of the sale on the spot. In doing so it purported to follow an unreported decision of a Division Bench of this Court in Ghinsilal v. Smt. Chandrawati Devi and Ors. D.B. Civil Misc. Appeal No 11 of 1965 decided on 4-5-66. I have carefully gone through the judgment of that case. It is distinguishable on facts. That the sale was adjourned on the spot by the peon of the sale Amin was one of the irregularities pointed out in that case. But the finding of the learned Judges was that the sale was not held at all on 6th and 7th October 1962 and on 8th October 1962 when it was adjourned no reason was given for adjourning it. The learned Judges who decided the case went into the facts and circumstances of it and came to the conclusion that there was a conspiracy between the sale Amin and the decree-holders so that the sale was manoeuvred in such a way that the bidders were confined to a group of persons interested in the mortgage and the decree-holders.

11. In the present case the material on record shows that the Sale Amin conducted the sale honestly in the best interest of the judgment-debtors. It was first held on 5-12-63. The maximum bid offered was Rs. 800/-. It was adjourned to 9-12-63 when the maximum bid offered was Rs. 1900/. It was again adjourned to 14-12-63 when the maximum bid offered was Rs. 1925/-. It was adjourned to 20-12-63 when the maximum bid offered was Rs. 2150/- It was adjourned to 27-12 63. This date was fixed by mistake as the civil courts were closed for winter vacations on that date. The sale Amin discovered this mistake and therefore adjourned the sale to 3-1-64 and directed his peon to proclaim on the spot that the sale will be held on 3-1-64 at 1 p. m. In this case the adjournment of the date was actually made by the Sale Amin. Only the peon was sent to make a proclamation on the spot of the adjourned date. There is no allegation that the bidders did not come to know of the adjourned date. On 3-1-64 Shamsuddin, objector, himself was persent and made a bidThe highest bid on that date was Rs. 2650/-. Even though this was more than the price shown in the sale proclamation the Amin did not declare the sale as he accepted that the property would fetch a higher price. He adjourned the sale to 10-1-64. On the latter date again Shamsuddin was present and offered a bid. The maximum bid on that date was Rs. 2675/-. The sale was adjourned to 23-1-64. When this was put up before the court it ordered that the sale should be declared on the next date. On 23-1-64 Shamsuddin made a bid for Rs. 3575/- and Smt. Saidan offered a bid of Rs. 3600/- and they were trying to over bid each other the Amin was hoping that on the next date it might fetch a higher price. So he adjourned the sale to 28-1-64. The court again ordered that the sale should be finalised on the next date. On 28-1-64 the highest bid was of Smt. Saidan which was accepted.

12. Different times were fixed on different dates for holding the sale by the Sale Amin obviously because he must have fixed other sales in other localities at 3 P.M. at which the sale was first held on 5-12-63. On all the adjourned dates bidders were present and they offered bids and the sale is a continuing one. The executing court duly applied its mind before passing orders. The report of the Amin gave reasons for adjourning the sale on every date. In the case before their Lordships of the Division Bench the Sale Amin gave no reason for adjourning the sale whatsoever and despite this the executing court approved his order. In the present case it cannot be said that the executing court merely acted as a rubber stamp and approved all the reports of the Sale Amin. To give an example, on 10 1-64 it passed an order that the sale should be declared on the next date namely 23-1-64. This the Amin had not recommended. No such order could have been passed by it if it had not applied its independent mind.

13. In the circumstances of the present case I hold that the adjournment on 27-12-63 was really made by the Sale Amin on the ground that it was a court holiday and the peon did not exercise any discretion on his behalf. Therefore there was no irregularity in conducting the sale at all. Further no injury was caused to Shamsuddin and others at all as they contracted to purchase property for Rs. 2500/-and it was actually sold for Rs. 3600/-.

14. I accordingly find that the appellate court totally misapprehended the decision of the Division Bench in Ghinsilal v. Smt. Chandrawati Devi and Ors. and applied it to the facts of this case, to which it is not at all applicable. It erroneously assumed that it was the peon and not the Amin who adjourned the sale. I, therefore, allow the revision application and set aside the order of the appellate court.

15. The applicant is entitled to recover costs throughout from the contesting respondents.


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