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Subbammal Vs. P. Gurusamy thevar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 2679, 2680 and 2681 of 1972
Judge
Reported inAIR1974Mad278
ActsCode of Civil Procedure (CPC), 1908 - Sections 148 - Order 21, Rules 72, 84, 85 and 86
AppellantSubbammal
RespondentP. Gurusamy thevar and ors.
Cases ReferredIn Uttamchand v. Balkrishna
Excerpt:
.....by execution court condoning delay in depositing deficient stamps - non compliance of rule 85 - auction purchaser failed to deposit full purchase price within 15 days from date of auction sale - order 21 rules 84, 85 and 86 are mandatory and court has no jurisdiction to extend time - order of execution court in allowing execution application filed by auction purchaser was without jurisdiction - order passed by execution court liable to be set aside - revision petition allowed. - - the rule makes it clear that the full amount of the purchase money as well as the general stamps has to be deposited within 15 days from the date of the sale of the property. in the case referred above, the supreme court has clearly held that if the requirements of rule 85 of order 21 are not complied..........decree and the said three lots were purchased by three different third parties. the respective auction purchasers made the deposit of 25 per cent of the purchase money in accordance with order 21, rule 84, c.p.c. the balance of purchase money was also deposited within the fifteen days period as contemplated under rule 85 of order 21. however, in each of the three cases, the deposit of general stamp was not proper. though general stamps had been deposited, the same were deficient in each of the three cases. eight days after the 15 days period prescribed under rule 85, the deficient stamps were deposited by the respective auction purchaser and applications were filed for excusing the delay in depositing the said deficient stamps. this was opposed by the judgment-debtor but the.....
Judgment:
ORDER

1. These three revision petitions arise out of execution proceedings. In E. P. No. 36 of 1972 in O. S. No. 116 of 1971 on the file of the court of the Subordinate Judge, Ramanathapuram at Madurai, three lots of properties were sold in court auction in pursuance of one and the same decree and the said three lots were purchased by three different third parties. The respective auction purchasers made the deposit of 25 per cent of the purchase money in accordance with Order 21, Rule 84, C.P.C. The balance of purchase money was also deposited within the fifteen days period as contemplated under Rule 85 of Order 21. However, in each of the three cases, the deposit of general stamp was not proper. Though general stamps had been deposited, the same were deficient in each of the three cases. Eight days after the 15 days period prescribed under Rule 85, the deficient stamps were deposited by the respective auction purchaser and applications were filed for excusing the delay in depositing the said deficient stamps. This was opposed by the judgment-debtor but the executing court has allowed the three execution applications filed by the auction purchasers holding that under the circumstances of the case, the delay in the deposit of stamps had to be condoned. The three revision petitions are filed by the judgment-debtor (first defendant in the suit), challenging the decision of the executing court in the said three applications filed by the auction purchasers.

2. I am quite clear that the order of the executing court in allowing the execution applications filed by the auction purchasers in one without jurisdiction. Under Rule 85 of Order 21, not only the full amount of purchase money payable but also the general stamps for certificate (or the amount required for such stamps) shall be deposited into court before the court closes on the 15th day from the date of sale of the property. If the purchaser is the decree holder himself, the proviso to the above-said rule says, that in calculating the amount to be so paid into court, he shall have the advantage of any set-off to which he may be entitled under Rule 72. However, this proviso has no application with regard to the general stamps to be deposited. Further, in this case, the auction purchasers are third parties and therefore, the proviso to Rule 85 has no application at all. Thus under Rule 85, the purchasers ought to have deposited the full amount of the purchase money and also the full general stamps for certificate before the court closes on the 15th day from the date of the sale of the property. Admittedly, in this case, the three auction purchasers though have deposited the full amount of purchase money and part of the general stamps, there was deficiency in general stamps. The deficiency came to be made up only eight days after the 15 days period prescribed in Rule 85. It would appear that the auction purchasers had made a mistake in calculating the general stamps required for the certificate and that is how there was deficiency in the deposit of general stamps. Whatever be the reason for the deficiency, the fact remains that the requirement under Rule 85 had not been fully complied with.

3. What is the effect of non-compliance of Rule 85 is the question. Has the executing court jurisdiction to extend time for depositing either the purchase money or the general stamp? I am quite clear that the court has no such jurisdiction.

4. There is no dispute that Section 148, C.P.C. has no application here. That section says that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time, enlarge such period. In the present case, there is no question of any period having been fixed or granted by the court for the doing of a particular act. It is the statutory provision contained in Rule 85 of Order 21 which makes it obligatory on the part of the auction purchaser to deposit not only the full amount of purchase money but also the general stamps within the prescribed period, namely, 15 days from the date of sale. There is no provision in the Code which authorities the executing court to extend the abovesaid period of 15 days. On the contrary, Rule 86 makes it clear that if there was default in payment within the period prescribed in Rule 85, the property shall be resold and the purchaser shall forfeit all claims to the property. Undoubtedly Rules 85 and 86 are mandatory. The court has no discretion in the matter. Of course under Rule 86, the executing court is given discretion but the discretion relates only to the question whether the deposit already made (under Rule 84) has to be forfeited or not.

5. In M. M. Shah v. Sayed Mahmed, : [1955]1SCR108 , it has been held that the provisions contained in Rules 84, 85 and 86 are mandatory. It is pointed out that the requirements of Rule 85 should be complied with within 15 days from the date of sale and that the said provision is mandatory. It is further pointed out that if the payment is not made within the period of 15 days, the court has the discretion ends and that the obligation of the court to resell the property is imperative. It is made clear that the non-compliance of the requirements of R. 85 results in the defaulting purchaser forfeiting all claims to the property, because of the provision in Rule 86. That was a case of non-payment of the purchase money. But it must be remembered that under Rule 85, there is no distinction between purchase money and the general stamps. The rule makes it clear that the full amount of the purchase money as well as the general stamps has to be deposited within 15 days from the date of the sale of the property. Therefore, what applies to the purchase money equally applied to the general stamps. In the case referred above, the Supreme Court has clearly held that if the requirements of Rule 85 of Order 21 are not complied with within the prescribed time, then the sale is a nullity and the purchaser acquires no right at all. In the face of this decision of the Supreme Court, the executing Court is entirely in the wrong in allowing the applications filed by the auction purchasers.

6. It purported to follow a decision of this court reported in Venkataramiah v. Audinarayanaiah, : AIR1953Mad929 . That was a case where the delay in depositing the general stamps came to be condoned by consent of parties. At page 664 the Division Bench has in fact observed that if the auction purchaser does not comply with the provisions of Order 21, Rule 85, he cannot insist on the compliance with it after the lapse of 15 days and demand that the sale in his favour should be confirmed. After making the above observation, regarding the legal position, the Division Bench pointed out that in that particular case what happened was that the sale was confirmed in accordance with the compromise between the parties and subsequently the court condoned the delay in depositing the amount required for stamp for the certificate. Very much subsequent to that, the judgment-debtor in that case filed an application for setting aside the sale on the ground that the requirements of Rule 85 had not been complied with by the auction-purchaser. The executing court held that in view of the compromise between the parties earlier, by which the court sale came to be confirmed in spite of the default made by the auction-purchaser, it was not open to the judgment-debtor to file a fresh application to have the sale set aside. Hence that application was dismissed. A civil revision petition taken to this court by the judgment-debtor against the dismissal of the said application was also not successful. Thereafter, the suit was filed attacking the court sale. The Division Bench ultimately held that the subject-matter of the suit was the same as in the application filed by the judgment-debtor to set aside the sale, which application had been dismissed earlier, and that therefore the suit should necessarily fail. This decision certainly does not help the auction-purchasers in the present case. Even in this decision, the Division Bench has quoted with approval several earlier decisions wherein it has been held that the court has no jurisdiction to extend the time prescribed under Rule 85. It is because that the sale was confirmed in pursuance of a compromise between the parties, it had been held in that case that the judgment-debtor cannot re-agitate the question that the sale was a nullity on the ground of non-compliance with Rule 85. In any event, in the face of the decision of the Supreme Court which clearly holds that the sale, regarding which the requirements of Rule 85 of Order 21, C.P.C., have not been complied with is a nullity the court auction-purchasers cannot be heard to contend otherwise. Further, in the present case, there is no question of the sale having been confirmed in spite of the non-compliance with the requirements of Rule 85 and the judgment-debtor coming forward with a case at a later stage that the sale is a nullity. Here the question is whether the executing court has jurisdiction to extend the time prayed for by the auction-purchasers. As already pointed out, there is no provision in the Code for such extension of time and a combined reading of Rules 84, 85 and 86 of Order 21, C.P.C. would make it absolutely clear that the provisions are mandatory and the court has no jurisdiction to extend time.

7. In Suryanarayanamurti v. Southern Agencies, : AIR1962AP271 , it has been held that a sale held in execution of a decree is a nullity and has to beset aside when the amounts mentioned in Order 21, Rule 85, C.P.C. are not deposited in full before the court closes on the 15th day from the date of the sale of the property. That was also a case where there was only deficiency in the deposit of general stamps. Relying on : [1955]1SCR108 referred to earlier, the Andhra Pradesh High Court held that the non-compliance with Rule 85 in respect of the deposit of general stamps would make the sale a nullity and that the court has no jurisdiction to extend the time fixed for the deposit. In Uttamchand v. Balkrishna, : AIR1961Bom224 , it has been held that the provisions of Order 21. Rule 85 as well as Rule 86 are mandatory in the sense that in the event of the auction-purchaser failing to deposit the full purchase price within 15 days from the date of the auction sale, the court will have no option but to order a resale of the property. It is also pointed out that the court has no jurisdiction whatever to extend the time for the payment of the balance of the purchase price as fixed under Order 21, Rule 85. As I said earlier, what applied to the purchase price equally applied to general stamps.

8. The result is the three revision petitions are allowed and E. A. Nos. 124, 125, and 126 of 1973 in E. P. 36 of 1972 in O. S. No. 116 of 1971 shall stand dismissed, but there will be no order as to costs.

9. I may add that, under the circumstances of the case, the executing court has to refund the money and the stamps already deposited by the auction-purchasers.

10. Revision allowed.


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