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State Bank of Patiala Vs. Chohan Huhtamaki (India) Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberO.M.P. No. 93 of 1981 in Ex. Petn. No. 10 of 1979
Judge
Reported inAIR1982HP27
ActsTransfer of Property Act, 1882 - Section 3; ;Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 72A
AppellantState Bank of Patiala
RespondentChohan Huhtamaki (India) Pvt. Ltd. and ors.
Appellant Advocate K.D. Sud, Adv.
Respondent Advocate K.S. Thapar,; Deepak Thapar and; S.S. Kanwar, Advs.
DispositionApplication allowed
Excerpt:
.....of possession of property - respondent contended that property sold was working factory which was immovable property installed by him for permanent working - further contended that relief claimed by petitioner cannot be given as sale was bad and invalid in view of provisions of order 21 rule 72-a - articles that were sold to auction purchaser comprised of machinery and such articles which cannot be termed as immovable when sold separately - contention that machinery and other articles were immovable cannot be sustained - provision contained in order 21 rule 72-a are only related to immovable properties - auctioneer directed to deliver possession to petitioner. - .....in conspiracy insisted on the auctioneer to receive the bids. according to the judgment-debtor the property sold was a working factory installed by him for permanent working as such, and was immovable property, it is further contended that the relief claimed by the petitioner cannot be given as the sale was bad and invalid in view of the provisions contained in order 21, rule 72-a of the civil p. c.3. the execution petition is pending since 15-10-1979. the judgment-debtors did not put in appearance though efforts were made to serve them personally. on 5-12-1979 though the judgment-debtor no. 2 was not found at his residence, but the service was effected on him through his wife smt. pushpa chauhan, judgment-debtor no. 3 was also served personally on 1-4-1980. all the same, the court in.....
Judgment:
ORDER

H.S. Thakur, J.

1. This is an application filed by Shri Rishi Kumar Kapila son of Shri Khushi Ram, resident of Kapur Lodge, Solan, under Order 21 Rules 79 and 81 of the Civil P. C. praying that the order for vesting the property in the petitioner and also the direction to the auctioneer be issued, for the delivery of possession of the property purchased by him in the auction. It is stated in the application that Shri Devinder Gupta Advocate, was appointed as auctioneer by this Court and held the auction of the property, mentioned in Annexure 'A' attached to this petition, on 10-5-1981. The petitioner was the highest bidder in respect of certain properties and paid 1/4th of the sale price at the fall of the hammer on that day. The petitioner was allowed 15 days time to deposit the balance of the sale price in Court. The highest bid given by the petitioner was in the sum of Rs. 1,30,000/-. He has paid a sum of Rs. 32,500/- at the fall of the hammer and the remaining amount of Rs. 97,500/- was deposited by him vide challan No. 23 dated 25-5-1981, and the receipt of the same has been issued in his favour. It is claimed by the petitioner that he is entitled to the actual delivery of possession of the property mentioned in the above Annexure,

2. Reply to this O. M. P. was filed on behalf of the judgment debtor. It is submitted that the auction was closed at 5.30 P. M. but the bidder in conspiracy insisted on the auctioneer to receive the bids. According to the judgment-debtor the property sold was a working factory installed by him for permanent working as such, and was immovable property, It is further contended that the relief claimed by the petitioner cannot be given as the sale was bad and invalid in view of the provisions contained in Order 21, Rule 72-A of the Civil P. C.

3. The execution petition is pending since 15-10-1979. The judgment-debtors did not put in appearance though efforts were made to serve them personally. On 5-12-1979 though the judgment-debtor No. 2 was not found at his residence, but the service was effected on him through his wife Smt. Pushpa Chauhan, Judgment-debtor No. 3 was also served personally on 1-4-1980. All the same, the Court in order to obviate the possibility of any objection regarding a proper service, again effected the service on the judgment debtors by publication in daily Hindi Paper 'Nav Bharat' for appearance in the Court on 17-6-1980. In spite of all this, none of the judgment debtors chose to appear and raise any objection to the execution proceedings. Therefore, the proclamation for the sale of the property of the judgment-debtors by auction, was made in 'The Tribune' of 11-11-1980 and in 'the Indian Express' of 3-12-1980 as also in the Himachal-Pradesh Rajpatra dated 15-11-1980. The auction was held on the basis of the above proclamation but the same was not confirmed as the price fetched was considered quite low. Again, proclamation for the sale of the property by public auction was made in the English Daily 'Indian Express' Chandigarh Edition, on 10-2-1981 and Dehli Edition on 3-12-1980 and 10-2-1981. The auction could not be held on the basis of this proclamation, which was fixed for 8-3-1981, as the same was postponed. Thereafter the sale was fixed for 10-5-1981 and proclamation to that effect was made to the 'Indian Express' of 7-4-1981 and 10-4-1981. On 8-5-1981, Shri K. S. Thapper, Advocate, assisted by other Advocates, appeared for the Judgment debtor, Shri K. S. Thapper, the learned counsel for the judgment debtor, made certain suggestions for the sale of the property. It was suggested by him that the auctioneer be authorised to sell the immovable property i. e., houses, factory, godowns etc., in separate buildings and separate lots, it need be. He further suggested that the mechinery should be sold after the fresh proclamation in which the judgment debtors will also co-operate and prepare a proper list with its functional qualifications including items if any, left out in this proclamation. He, however, stated that this will be without prejudice to the objections already raised in the Objection Petition, This Court on 8-5-1981 ordered that the judgment debtor or his representative, it they so choose, can be present at the time of the auction. It was further observed that the auctioneer shall hold the auction in a manner as far as practicable so as to get the maximum possible price of the property to be sold and that the suggestion of the learned counsel, as far as practicable and possible, be kept in view. A copy of this order was given to Shri Devinder Gupta Advocate, who was appointed the auctioneer.

4. It in apparent that the judgment debtor initially was not keen to object to the execution proceedings. In spite of the proclamations having been made several times, as referred to above, none of the judgment debtors took any step to raise any objection regarding the sale.

5. Shri S. S. Kanwar, who appears for the petitioner-auction-purchaser, has drawn my attention to the provisions contained in Order 21 Rule 78 of the Civil P. C. It is contained in the said provisions that no irregularity in publishing or conducting the sale of movable property shall vitiate the sale. It is further provided that any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery. It is further contended by the learned counsel that the provisions contained in Order 21, Rule 90 of the Civil P. C. are only attracted in respect of (immovable properties. The question which remains to be determined is whether the articles that are sold to the auction-purchaser are to be termed as movable or immovable property. The articles contained in Annexure 'A' are comprised of machinery and such like articles. The machinery and other articles are not being sold along with the house or the land, but were intended and, in fact, have been sold as separate items. Even from the statement of Shri Thapper dated 8-3-1981 it can be inferred that he wanted that the machinery be sold after a fresh proclamation and not along with the houses, factory and godowns etc. A machinery or any part of a machinery cannot be termed as immovable property, if sold separately. In case a factory, along with the building, and machinery permanently embedded in the land as to be sold, it is likely to be termed as immovable property, but not otherwise. As such the contention of the learned counsel for the judgment debtor that the machinery and other articles as auctioned to the aforesaid auction-purchaser is immovable, cannot be sustained and the objection is repelled.

6. The other objection raised on behalf of the judgment debtors is that the sale is void in view of the provisions contained in Order 21, Rule 72A of the Civil P. C. It is desirable to reproduce the said provision :--

'72A. (1) Notwithstanding anything contained in Rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid tor or purchase the property.

(2) It leave to bid is granted to suchmortgagee, then the Court shall fix areserve price as regards the mortgagee,and unless the Court otherwise directs,the reserve price shall be :--

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lots and

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

(3) In other respects, the provisions of Sub-rules (2) and (3) of Rule 72 shall apply in relation to purchase by the decree-holder under that rule.'

In the first Instance, it may be pointed out that the decree-holder did not give any bid in respect of the property which was purchased by the petitioner, being the highest bidder. No doubt, the decree-holder was allowed to bid at the auction, but it is revealed that the decree-holder did not give any bid in respect of the property contained in Annexure 'A'. Assuming that the grant of permission to bid at the auction amounted to his giving a bid, even then the provisions contained in this rule are only applicable to immovable property. Since I have already observed earlier above, that the property contained in Annexure 'A' fa movable, this provision is not attracted at all.

7. For the foregoing reasons, the application is allowed and it is ordered that the property vests in the petitioner who is the highest auction-purchaser and the auctioneer is directed to deliver the possession of the said property to the petitioner. The application is accordingly allowed, but the parties are left to bear their own costs.


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