TMI Blog1986 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... partitioned into specific shares, it was agreed that is should be sold and the sale proceeds should be divided between the parties according to their respective shares. The sale was to be effected and the sale deed was to be executed in favour for the buyer within a period of six months, failing which the trial Court was to appoint a receiver to sell the property and to divide the sale proceeds between the parties. A decree in terms of the aforesaid compromise was passed by the trial Court on 4-7-1969 itself. 2. It appears that the sale of the suit house was not made by the parties within six months. Hence an application was filed by the non-applicant No.5 in the instant revision for appointment of a receiver for sale of the property in suit which is Exh-1, The said application was filed on 13-6-1974 in Miscellaneous Judicial Case No. 173 of 1974. On 25-201982, the learned trial Court passed an order upon the aforesaid application appointing Shri M. I. Shareef of Advocate as a Commissioner to sell the suit property by public auction and to divide the sale proceeds amongst the parties as per their shares. According to the said order he was directed to submit his report by 31-3-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant No.4 for purchase of the suit house and the objections filed by the applicant were decided by the learned trial Court by his order dated 30-4-1982. 5. The learned trial Court by his order dated 30-4-1982 held that the application of the applicant and the non-applicant No.4 dated 28-4-1982 was not bona fide because they had not deposited any amount at all and further that their offer could not be accepted at the stage of confirmation of the sale because they had not given any offer to the Commissioner. As regards the objections filed by the applicant, the learned trial Court held that the sale effected by inviting the offers by the advertisement in spirit and in fact conformed to the sale by public auction. He further found that the suit house had fetched a good price of ₹ 1,27,000/- when its market price at that time estimated by the Architect was ₹ 1,16,000/- only. In this view of the matter, the learned trial court by his order dated 30-4-1982 confirmed the sale of the suit house. Being aggrieved, the applicant has preferred the instant revision in this Court. 6. The learned counsel for the applicant has urged before me that the sale in question effected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code in respect of the sales in execution of decrees under the Code. 8. IT is in view of the above provisions of the Partition Act that is urged on behalf of the applicant by his learned counsel that in any case in which the sale is ordered under Section 2, the said sale being subject to reserved bidding as per section 6(1), it is mandatory to determine the reserved price for such bidding. According to him, failure to determine the reserved price has vitiated the sale in the instant case. It is further pointed out by reference to Section 6(2) of the Partition Act that the co-owners were deprived of their right to bid at the sale because no public auction as ordered by the Court was held by the Commissioner in this case. In support of the application under Section 3 of the Partition Act, it is urged that the learned trial Court committed a grave error of law in rejecting the application of the applicant and the non-applicant no.4 for allowing them to purchase the suit house at the valuation given by the non-applicant No.7. It is the submission that there is no time limit fixed for making an offer of sale was directed under Section 2 and before it was confirmed by the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Section 2 of the Partition Act. The said sale therefore is a sale as contemplated by Section 2 of the said Act. It is clear from the terms of compromise decree that in case the parties did not dispose of the house within six months the trial Court was empowered to appoint a receiver for disposing of the same. The learned trial Court, therefore, at that stage when an application (Ex. 1) was made to him for the sale of the house, applied his mind to the requirement of Section 2 of the Partition Act and by the order dated 25-2-1982 passed on Ex. 1 directed its sale by public auction. 11. There is, however, merit in the contention on behalf of the non-applicant No.7 that at any rate the provisions of section 3 of the Partition Act would not be applicable in the facts of instant case and it was not therefore, open to the applicant and the non applicant No.4 to make an application for purchase of the suit property at the price offered by the non-applicant No.7. It is clear from the terms of the consent decree that all the parties agreed that the house should be sold because it was incapable of being divided and no liberty was reserved in the said compromise terms for any party t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest of the party that waives it. It is held in the facts of the above case that the provision of Section 35 of the Bengal Money Lenders Act. 1940 even assuming that it was mandatory was a provision indented only for the benefit of the judgment debtor and therefore could be waived. It may be seen that Section 35 of the aforesaid Act is a provision relating to the contents of the proclamation and is analogous to Rule 66(2) of Order 21 of the Code. I was held by the Supreme Court that the aforesaid provision was for the benefit of the judgment debtor and could be waived by him. It was, therefore held that sale in that case was not vitiated. 14. The question raised in the instant case is however a more basis question and the said question is whether the sale by advertisement is at all a 'sale' by public auction. Section 35 of the Bengal Money Lenders Act 1940 related merely to the procedure in holding the public auction. The submission, on behalf of a applicant therefore, is that if the provisions relating to the holding of sale by public auction are mandatory provisions and if the sale by advertisement is not a sale by a public auction, the sale in the instant case would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lamation after drawing it itself. It is in the absence of such a proclamation in the Madras decisions cited supra, that the sales have been held to be a nullity. 17. However, the principal question to be considered in the instant case is as to whether the mode of sale by calling offers by advertisement can be said to be a form of a public auction. In support of the contention that the mode of calling for offers by advertisement is not a sale by public auction the provisions of Section 64 of the Sale of Goods Act 1930 are brought to my notice by the learned counsel for the applicant to show what an auction sale means or how it is understood. The main feature distinguishing the auction sale from other sales which is ...........................................on the spot and is by public competition. Every body present at the time of the said sale is entitled to raise his own bid on the spot and that is how the highest bidder is determined. It is pointed out that in a case of sale by tenders of by calling for offers there is no opportunity to the indenting buyer to raise his own bid. It is therefore urged that sale by inviting offers cannot be a sale by public auction. IT is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale by tender or by calling for offers. The above decision is, therefore, of no assistance to the non applicant No.7. 21. Considered in this light, it has to be seen whether the sale in the instant case by calling for offers by advertisement is a sale within the meaning of Order 21 Rule 90 of the Code. It is well settled that the provision of Rule 65 of Order 21 of the Code has to be by public auction it would not be a sale to which the provisions of Order 21 Rule 90 of the Code would be null and void being in breach of Order 21 Rule 65 of the code as well as the order of the Court dated 25-2-1982 [1968]2SCR572 . The power of the Court to consider legality or otherwise of such a sale is then under Section 47 and not under Order 21 Rule 90 of the Code. 22. If the requirement of Rule 65 of Order 21 of the Code is that every sale shall be by a public auction then the sale held in any other manner would be a nullity. In the instant case, even the Court by his order has directed to hold the sale by public auction by his order dated 25-2-1982. The Commissioner therefore had no power to hold the sale by calling for offers by a advertisement in the instant case. In fact the proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requiring them to pay the interest. 25. As regards the contention of behalf of the non-applicant No. 7 about the application of the principles of restitution under section 144 of the Code, in my view, the said principle is not attracted in the facts of this case because no benefit is received by the applicant and the other co-owners since the purchase money was not paid to them. As regards the question whether Order 21 Rule 93 of the code is exhaustive is correct because it is applicable only in case where sale of immovable property is set aside under Order 21 of the Code which in other words would mean the said auction sale is set aside under the provisions of Rules 89, 90 and 91 of Order 21 of the Code. It cannot, therefore, cover a case of a sale which does not fall under the said rules but still is a nullity and the executing Court exercises its power for setting it aside under Section 47 of the Code. In my view, in such a case, the Court would be able to exercise its inherent powers under section 151 of the Code upon the consideration of equity. 26. Considering now the merits of the claim made on behalf on the non-applicant N0.7 it has to be seen whether in the first pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of or without notice to the parties because that was not the date on which the matter was fixed in the trial Court. It is clear from the record that after 15-3-1982, when ;an application was made for adjournment for compromise, the case was adjourned to 7-4-1982. In these circumstances, it cannot be said that there was any equitable obligation cast upon the co-owners regarding the payment of interest to the non-applicant No.7. 28. It may also be seen that the applicant and other co-owners also took the risk of not getting the directions from the Court to deposit the amount of purchase money in securities because, had they lost in this case, they would have received the same amount of purchase money without any interest. If the parties have chosen to take risk and suffer the consequences of not getting the purchase money invested in securities, in my view, no liability about interest can be fastened upon the applicant and the other co-owner, particularly when they are successful in the litigation. No case, therefore, is made out by the non-applicant No.7 for claiming interest against the successful party as the co-owners did not earn any benefit of utilisation of the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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