TMI Blog1996 (8) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - - - Dated:- 23-8-1996 - JUDGMENT: J.S. VERMA. J. The appellant obtained a money decree against respondent no. 1 on 25.12.1982. On 02.01.1983 the appellant filed an application for execution of the decree by recovery of the amount of Rs.17,892/-. The appellant applied for recovery of the decretel amount by sale of e large tract of agricultural land of the respondent no.1, the value of which shown by the appellant was Rs.73,000/- in 1976. The auction was held on 10.12.1984. The appellant bid at that auction with the permission of the Court. The appellant bid was for the amount of Rs.23,500/-. On 12.12.1984 the bid of the appellant was accepted The appellant did not make any deposit on the date of auction and claimed adjustment of the decretal amount against the sale price. Admittedly, there was a shortfall in the sale price, even after the decretal amount was set off and the deposit made by the appellant within the time allowed was taken into account. After expiry of the period prescribed for payment of the full sale price, on 19.4.1985 the appellant deposited Rs.3,727.25 which fell short towards the sale price of Rs.23,500/-. On 18.9.1985 the executing court accepted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of 4 months from today; and the last instalment for Rs.25,000/- within a period of 6 months from today; b) The appellant must further deposit a sum of Rs.15,000/- per year in the Trial Court for the period June, 1991 till the appeal is finally disposed of. The amount shall be deposited on or before the 31st of July each year. the first deposit being on or before 31.7.1992. c) The amount deposited as directed above shall be invested by the Trial Court in interest earning fixed deposits in a nationalised bank and shall be subject to the direction of this court. d) In case of default in depositing any of the aforesaid amounts as mentioned in Clause (a) and (b) above the order of stay shall automatically stand vacated." Shri Satish Chandra, learned counsel for the appellant submitted that the consequences envisaged by Order XXI Rule 85 due to the non deposit of the full sale price do not ensue in the present case because the shortage in deposit by the mistake of the Court in specifying a lesser amount in the sale proclamation as the decretal amount then due. He submitted that in these circumstances Rule 90 and not Rule 85 of Order XXI applies and report to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84, 85 and 86 of Order XXI Code of Civil Procedure and held as under : " ...The principal question which falls to be considered is whether the failure to make the deposit under Order XXI, rules 84 and 85, is only a material irregularity in the sale which can only be set aside under rule 90 or whethers it is wholly void. It is argued that the case falls within the former category and the application under rule 90 being barred by limitationl the sale cannot be set aside. It is also contended that the Court having once allowed the set-off and condoned the failure to deposit, the mistake of the Court should not be allowed to prejudice the purchasers who would certainly have deposited the purchase who but for the mistake, We are of the opinion that both the contentions are devoid of substance. In order to resolve this controversy a reference to the relevant rules of Order XXI of the Civil Procedure Code will be necessary. These Rules are 72, 84, 85 8 and 86: xxx xxx xxx The scheme of the rules quoted above may be shortly stated A decree-holder cannot purchase property at the Court-auction in execution of his own decree without the express permission of the Court and that when he do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completely wiped out as if they do not exist in the eye of law. we hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all. It was urged before us that the Court could allow a set-off in execution proceedings under its inherent powers apart from the provisions of Order XXI, rule 19, of the Civil Procedure Code. We do not think that the inherent powers of the Court could be invoked to circumvent the mandatory provisions of the Code and relieve the purchasers of their obligation to make the deposit...." ( Pages 116 - 117 ) It is to be noted that the argument that it is only a material irregularity in the sale to attract Rule 90 instead of Rule 85 was expressly rejected; and it was clearly held that Rule 85 being mandatory, its noncompliance renders the sale proceedings a complete nullity requiring the executing court to urged under Rule 86 and property has to be resold unless the judgment-debtor satisfies the decree by making the payment before the resale. The argument that the executing court has inherent power to extend time on the ground of its own mistake was also expressly rejected. In our opinion the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r herein before prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto." It is clear that the sale proclamation is drawn up by the execution court after notice to the decree-holder, on an application for an order for sale made by the decree-holder which is to be accompanied by a statement signed and verified by the decree-holder in the prescribed manner and containing the matters required by sub-rule (2) to be specified in the proclamation, which also includes the amount for the recovery of which the sale is ordered. It follows that the amount for the recovery of which the sale is ordered is stated in the sale proclamation on the basis of the duly signed and verified statement made by the decree-holder's accompanies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as entitled to set of under Rule 72 as provided in Clause 2 of Rule 84. In reply learned counsel for respondent no.1 submitted that the Court had not dispensed with dispensed with this requirement as no such permission was sought by the appellant. In view of our conclusion that there was a clear not-compliance of the requirement of rule 85 which rendered the sale a nullity, we consider it unnecessary to decide this further question in the present case. The question now is of the ultimate order to make while dismissing this appeal, in view of the fact that the appellant is in possession of the land since 4.5.1987 inspite of the stay order dated 19.12.1986 made by the High Court which ultimately decided in favour of the respondent the respondent no.1 The High Court has clearly stated that the entire decretal amount due for satisfaction of the decree had been deposited by the debtor respondent no.1 in the Court. The interim order dated 6.8.1991 made in this appeal while granting stay to the appellant has also to be taken note of. We are informed that the appellant has been, making the deposits as required by the order dated 6.8 1991. The appellant has enjoyed the usufruct of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
