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The Court Liquidator Vs. Bimalendu Das and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberMatter No. 12 of 1949
Judge
Reported inAIR1985Cal382
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 89 and 92; ;Limitation Act, 1963 - Schedule - Article 127; ;Limitation (Amendment) Act, 1976
AppellantThe Court Liquidator
RespondentBimalendu Das and ors.
Appellant AdvocateP.K. Roy, Adv.
Respondent AdvocateGautam Chakraborty, Adv.
Cases ReferredThangammal v. K. Dhanalakshmi
Excerpt:
- .....if the judgment-debtors pay rupees one lakh (rs. 1,00,000/-) to the court liquidator before the date of sale then the sale will be postponed and the amount will be accepted in full satisfaction of the claim of the court liquidator if it is paid before 11-8-81.the court liquidator, judgment-debtor and all parties to act on a signed copy of the minutes for usual undertaking'.7. in the affidavit of bimalendu das affirmed on the 17th dec., 1981 it is stated that only six days were allowed to the judgment-debtors to deposit a sum of rupees one lakh with the court liquidator. it is stated that the deponent is a diabetic and also suffers from heart ailments. although the deponent was extremely keen to save the ancestral property from sale he could not come down to calcutta from assam with.....
Judgment:
ORDER

T.K. Basu, J.

1. This is an application for setting aside a sale under the provisions of Order 21 Rule 89 of the Code of Civil Procedure, 1908. The facts leading to the making of the present application may be briefly noted.

2. In or about 1950, the Pioneer Bank Limited (in liquidation) (hereinafter referred to as the Bank) instituted two suits being Suits Nos. 3782 of 1950 and 3553 of 1950 against one Baroda Kanta Das on or about the 9th April, 1951. The two suits were decreed in favour of the Bank against Baroda Kanta Das for a total sum of Rs. 1,23,525/1/-.

3. Baroda Kanta Das, the judgment-debtor in the two decrees died intestate on the 14th Dec. 1970.

4. Long after the death of Baroda Kanta Das, the Bank started execution proceeding against the heirs of the judgment-debtor for the recovery of Rs. 2,78,000/- inclusive of accrued interest and costs. Bimalendu Das, the applicant herein was described as one of the judgment-debtors in these execution proceedings. The Bank also levied writ of attachment upon the immovable properties left by Baroda Kanta Das in two plots being Plot No. I and Plot No. II. From the Schedule of Properties it appears that these are plots in Silchar and structures are standing therein.

5. Thereafter, the Court Liquidator who was appointed Receiver in the execution proceedings by this Court took steps to sell the properties which were under attachment. The Court Liquidator as Receiver also took steps to advertise for sale of the properties inviting offers under sealed cover. The advertisement was issued in the Statesman of the 16th July, 1981 and in a Bengali Daily in Assam on the 18th July, 1981.--

6. On the 5th Aug. 1981 on an oral application of the judgment-debtors including Bimalendu Das, Salil Kumar Roy Chowdhury J. (as his Lordship then was) passed the following order :

'It is now alleged that plot No. J in the advertisement is the residential property which is again disputed by the Court Liquidator. For the time being the Plot No. 1 will be excluded from this sale. But let the other properties be sold i.e., rest of the properties be sold including the property at Fulartal, Silchar and after all these sales if the sale proceeds of these properties after being collected from the highest bidders or bidder to be sufficient to cover the claim then the decree will stand satisfied and if the sale proceeds do not satisfy the claim of the Court Liquidator then the Liquidator is given leave to apply before the Court for obtaining further orders.

It is also recorded in this connection that if the judgment-debtors pay Rupees one lakh (Rs. 1,00,000/-) to the Court Liquidator before the date of sale then the sale will be postponed and the amount will be accepted in full satisfaction of the claim of the Court Liquidator if it is paid before 11-8-81.

The Court Liquidator, Judgment-debtor and all parties to act on a signed copy of the Minutes for usual undertaking'.

7. In the affidavit of Bimalendu Das affirmed on the 17th Dec., 1981 it is stated that only six days were allowed to the judgment-debtors to deposit a sum of Rupees one lakh with the Court Liquidator. It is stated that the deponent is a diabetic and also suffers from heart ailments. Although the deponent was extremely keen to save the ancestral property from sale he could not come down to Calcutta from Assam with the sum of Rupees one lakh by the stipulated time.

8. On the 17th Aug., 1981 the deponent came down to Calcutta and contacted Pulak Chandra Das, an advocate of this Court and learnt from him that on 13th Aug. 1981 Salil Kumar Roy Chowdhury J. (as his Lordship then was) passed an order directing the Court Liquidator to accept the offer of Rupees one lakh twenty seven thousand (1,27,000) from one Kutabuddin Soni Laskar and complete the sale of the property upon receipt of the balance of the purchase price. The order dated the 13th Aug. 1981, is in the following terms :

'Re :-- Plot II of the sale notice : The offer of Kutubaddin Soni Laskar to the tune of Rupees one lakh twenty seven thousand (Rs. 1,27,000/-) be accepted by the Court Liquidator. It is recorded that 10% of the total purchase price and being the earnest money to the tune of Rupees twelve thousand seven hundred (Rs. 12,700/-) is also forwarded by Bank Drafts dated the 8th August, 1981 of the Central Bank, Rabindra Sarani. The Court Liquidator is directed to complete the sale upon receipt of the balance of purchase price as per terms and conditions of this sale. The Court Liquidator will issue receipt for the amount received by way of earnest money to the purchaser forthwith.

The Court Liquidator is given leave to appropriate sale proceeds in full satisfaction of the decree at Rs. 1,27,000/- as aforesaid being the sale proceeds of the property upon full payment being made by the purchaser herein.

Let certificate of sale be issued by the Department.

Plot No. I of the sale notice will be released from the attachment or mortgage and be handed over to the judgment-debtors herein by the Receiver and thereafter the Court Liquidator as Receiver stands discharged.

Cost of this application is assessed at One hundred (100/-) G. Ms payable out of the sale proceeds herein. Two offers and report are handed over to the Court Liquidator who will keep the same in his custody after realising the same. The Court Liquidator, purchaser, judgment-debtor and all parties to act on a signed copy of the minutes on usual undertaking.'

9. It is this sale of the property of the deceased judgment-debtor which is sought to be set aside by the present application.

10. The principal question that was canvassed before me was whether the application for setting aside the sale is barred by limitation.

11. In order to appreciate the rival contentions of the parties it would be necessary to refer to certain provisions of the Code of Civil Procedure and the Limitation Act.

12. Order 21, Rule 89 of the Code of Civil Procedure 1908 provides for an application to set aside a sale. That Rule provides that where immovable property has been sold in execution of a decree any person either owning such property or having any interest therein may apply to have the sale set aside on his depositing in Court for payment to the purchaser a sum equal to 5% of the purchase money and for payment to the decree holder the amount specified in the proclamation of sale.

13. Order 21, Rule 92(2) provides that where an application is made under Rule 89 or 91 and such application has been allowed and where in the case of an application under Rule 89, the deposit required by that Rule is made within 30 days from the date of sale the Court shall make an order setting aside the side.

14. Article 127 of the Limitation Act, 1963 as it originally stood provided for a period of 30 days from the date of the sale as limitation for an application for setting aside such sale.

15. It is to be noted that by an amendment of 1976 this period of 30 days in Article 127 of the Limitation Act has been extended to 60 days.

16. It is however curious that in spite of the above amendment of the Limitation Act Or. 21, Rule 92(2) which provided for making of the deposit within 30 days from the date of the sale still stands unamended.

17. The interesting question that was canvassed before me in this application was whether the time for making the deposit as required by the Code of Civil Procedure is to be made within 30 days or 60 days in view of the amendment of the Limitation Act.

18. Mr. P. K. Roy appearing on behalf of the applicant referred to a decision of a Division Bench of the Patna High Court in the case of Radharaman Choudhury v. Gulab Thakur reported in : AIR1959Pat50 . In that case it was held that upon a reading of Order 21, Rule 89(1)(b) together with Rule 66(2) thereof it is manifest that the amount that is required to be deposited under Rule 89(1)(b) is the amount which the decree-holder is entitled to recover under the decree. That being the position, where the amount under the decree is reduced by amendment the deposit according to the terms of the amended decree is sufficient to have the sale set aside.

19. Another case that was referred to by Mr. Roy is a decision of a single Bench of the Nagpur High Court in the case of Vithoba v. Dhanaji reported in AIR 1948 Nag 126. In that case which was decided by Vivian Bose J. (as his Lordship then was) the property of the judgment-debtor was sold in execution of money decree but before the sale was confirmed the decree was reversed on appeal and thereupon the judgment-debtor applied under Order 21, Rule 89 to have the sale set aside and made a deposit of 5% under Rule 89(a) but did not make any deposit under Rule 89(b) for payment to the decree-holder on the ground that the decree having been reversed nothing was due to the decree-holder.

20 It was held that although an application under Rule 89 imported an admission that the sale was good despite any subsequent reversal of the decree the decree was no longer good and as between the judgment-debtor and the decree-holder it was wiped out and therefore there was under the law a constructive receipt within the meaning of Rule 89(b) by the decree-holder of what was once due to him. Hence the deposit under Rule 89(a) without deposit under Rule 89(b) was sufficient compliance with Rule 89.

21. Another decision on this aspect of the matter was relied upon by Mr. Roy. It was a decision of the Allahabad High Court in the case of Panna Lal v. Bhola Nath reported in AIR 1930 All 843. In that case it was held that where several properties are sold in execution of a mortgage decree in separate lots to different purchasers, and decree is fully satisfied by the amount of properties sold except to the extent of price of house, sale of which was sought to be set aside, deposit by judgment-debtor of price of property sold to auction-purchaser, together with 5 per cent of this decretal amount, is good deposit within Rule 89.

22. Mr. Goutam Chakraborty appearing on behalf of the auction-purchaser relied on certain authorities for the interpretation of the words 'date of sale' which may now be considered. The first authority is a decision of this court in the case of Chowdhury Kesa Sahay Singh v. Giani Roy reported in (1902) 6 Cal WN 776. In that case it was held that the words 'date of sale' in Section 310A, C.P.C. (which corresponds to Order 21, Rule 89 of the present Code) mean the actual date of sale when the property is put up for sale and knocked down to the highest bidder, the 'date of sale' does not mean the date when the sale is confirmed or when an order setting it aside is reversed by the Appellate Court.

23. In the case of Jaibhadar Jha v. Matukdari Jha reported in AIR 1923 Pat 525, it was held that it is only when the Presiding Officer close the bidding and formally accepts the bid and declares the purchaser, that the sale is complete. Mere closing of the bid does not complete the sale.

24. In the case of Vana Khushal Patil v. Ratilal Bhaidas reported in AIR 1926 Bom 335(1) it was held by Division Bench that an application under Order 21, Rule 89 to set aside the sale after making the necessary payment into Court must be made within thirty days from the date of the sale, and the date of the sale is when the property is put up for sale and knocked down to the highest bidder.

25. In the case of Kanwal Ram v. Mt. Gurdei reported in AIR 1931 Oudh 291 it was held that the terminus a quo for application under Order 21, Rule 89 of the Civil Procedure Code is the date of the sale. It is only on the date when the bid is accepted and a declaration made about a person being a purchaser, which declaration is to be followed immediately with the deposit of one-fourth of the purchase money, that the sale can be said to have been completed and the starting point of limitation for an application under Order 21, Rule 89, must be the date of such declaration and deposit and not the date when the bid was made.

26. These decisions on the question of date of sale were sought to be distinguished by Mr. P. K. Roy as having no application to the facts of the present case on two principal grounds. The first ground is that in the cases mentioned above the highest bidder were specifically declared the purchaser unlike the present case. Secondly, in the present case only 10 per cent of the purchase price appeared to have been paid on or before the date of the order viz., 13th Aug. 1981 such payment does not comply with the mandatory provision of Order 21 which stipulates payment of 25 per cent of the purchase money as payable on the very date of the auction sale. In the above-mentioned cases the earned money was paid in compliance with the mandatory/statutory provisions.

27. Certain other authorities were cited on behalf of the parties which may also be noted. As will appear from what is stated hereinafter these authorities will really have no bearing on the question which I am to decide.

28. Mr. Chakraborty relied on a decision of the Supreme Court in the case of V. Ramaswami Aiyengar v. T.N.V. Kailash Thevar reported in : [1951]2SCR292 . In that case it was held that the duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under guise of interpretation.

29. On behalf of the petitioner reliance was sought to be placed on a recent decision of the Supreme Court in the case of Himmatbhai Chaganlal v. Rikhilal reported in : [1978]3SCR429 . In that case it was held that when a proper deposit is made-by any of the judgment-debtors as required under Order 21, Rule 89, the benefit for setting aside the sale would accrue to the other judgment-debtors.

30. Mr. Chakraborty relied on a decision of the Supreme Court in the case of Jibon Krishna Mukherjee v. New Beerbhum Coal Ltd. reported in : [1960]2SCR198 . In that case it was held that where the Court appoints a Receiver and gives him liberty to sell the property the receiver may either sell the property and thereby realise the money for the satisfaction of the decree, or he may, even without selling the property, seek to satisfy the decree by the collection of rents due from the property or other ways open to him under the law. It was held that such an order would not amount to an order for selling the property and in the event of the sale being made Order 21, Rule 89 cannot be invoked for setting aside the sale.

This decision in my opinion has no application whatsoever to the facts of the present case.

31. The last decision cited by Mr. Chakraborty is of a learned single Judge of the Bombay High Court in the case of Amritlal Narsilal v. Sadasiv reported in AIR 1944 Bom 233. In that case it was held that Order 21, Rule 89 must be strictly complied with, if the judgment-debtor wants to take advantage of concession given by that rule. If the deposit falls short even by a small sum of the requisite amount there would be no compliance to Order 21, Rule 89.

32. As I have already indicated, the central question to be decided in this application is whether this application is barred by limitation. For that purpose it has to be decided first whether the time to make the deposit for the purpose the setting aside the sale is 30 days or 60 days from the date of the sale in view of the amendments and the omissions mentioned above.

33. Mr. P. K. Roy strongly relied on a decision of the Madras High Court in the case of Thangammal v. K. Dhanalakshmi, C. M. A. No. 226 of 1978 where the judgment was delivered by Ramanujam, J. on the 20th Nov. 1980 : (Reported in : AIR1981Mad254 ). In that case in execution of a decree the appellant's properties had been sold in Court auction on 21-12-1977. The judgment-debtors came forward with a petition on 23-1-1978 to set aside the sale on depositing the entire decretal amount. The application was opposed by the auction purchaser on the ground that the deposit had been made beyond thirty days from the date of the sale as per Order 21 Rule 92(2) the application cannot be maintained. This decision came up before the Madras High Court on appeal. The ground was that as the time for an application under Order 21 Rule 89 has been fixed under Article 127 of the Limitation Act of 1963 as 60 days the application for setting aside the sale and the deposit of the amount being within the said sixty days the Court below was in error.

34. It is evident that the Madras High Court was called upon to decide the identical question that is before me for consideration. In dealing with this contention Ramanujam, J. observed inter alia as follows :

'A conjoint reading of Article 127 of the Limitation Act and Order 21 Rule 89 and 92 will clearly indicate that Rule 92(2) merely declares the right of parties arising as a result of the disposal of the application under Order 21 Rule 89. Once a right is given to the judgment-debtor under Order 21 Rule 89 to set aside a sale on deposit of an amount by filing an application within 60 days that right cannot be taken away under Rule 92(2) by insisting on the payment of the amount within thirty days. Obviously the Legislature has overlooked reference to 30 days in Rule 92(2) when it enlarged the period of limitation under the Limitation Act for filing an application under Rule 89. This appears to be a clear case of Casus omissus. Even otherwise, the Legislature cannot be taken to have provided two periods of limitation, one for making an application for setting aside a sale under Rule 89 of Order 21 and another for deposit of the amount which is a condition precedent for making such an application.'

35. After referring to the recommendations of the Law Commission for enlarging the period of time for making an application for setting aside the sale Ramanujam, J. observed as follows :

'Even if it (Order 21 Rule 92(2)) be construed as a provision prescribing a period of limitation for making the deposit, I am of the view that it should be read subject to Article 127 of the Limitation Act which should be taken to be special Act in the circumstances of this case and not a general provision as has been construed by the Court below. Even assuming that Rule 92 is a provision fixing the period of limitation for making a deposit which is a condition precedent for filing an application under Rule 89, still, in so far as it is inconsistent with the provision in Article 127 of the Limitation Act, it should give way. Generalia specialious non derogant.

It is a well established rule of construction that when there is repugnance or inconsistency between a general enactment and a special enactment the latter must prevail over the former and the former must yield in favour of the latter to the extent of repugancy.'

36. With respect, I am in entire agreement with the reasoning and the decision of Ramanujam, J. For the reasons given in that judgment I hold that the limitation for making an application for setting aside the sale and for making the deposit under the law as it stands today is 60 days. As admittedly, the application and the deposit it have been made within 60 days from the date of the sale, this application must succeed.

37. There will be an order in terms of prayer (b) of the Summons. There will also be an order in terms of prayer (d) of the Summons.

38. There will be no order as to costs.

39. The Court Liquidator would be entitled to retain his costs out of the assets in his hands.


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