Gorakh Singh vs Jagpal Singh and others

M.L. Singhal, J

Through this common judgment, both these revision petitions shall be disposed of.

One Gurbachan Singh obtained a decree for the recovery of Rs. 25,000/- inclusive of interest and costs against Lekh Ram -dead represented

by his widow Bhagwani, sons Maghar Ram etc and daughters Kauran Devi etc on 30th May, 1992 in a Civil Suit No. 367 dated 28th April, 1990

from the Court of Sub Judge Ist Class, Dhuri. It was provided in the decree that the decretal amount shall be paid positively by the Defendants to

the Plaintiff on or before 30th June, 1992 and in case, the Defendants failed to make the payment of Rs. 25,000/- to the Plaintiff on or before 30th

June, 1992, the suit of the Plaintiff shall be deemed to have been decreed for the recovery of Rs. 35,500/- with costs and interest @ 12% per

annum from the date of filing of the suit till realisation.

The Defendants could not make the payment of decreetal amount till 30th June, 1992 and, therefore, later part of the decree came into play.

Gurbachan Singh put in Execution Petition No. 54 registered on 7th October, 1992, in the Court of Sub Judge Ist Class, Dhuri for executing the

decree. It was prayed that an amount of 54,393/- be got recovered from the J.Ds by attachment of sale of their 11/36 share in land measuring 126

bighas 21 biswas, situated in the revenue estate of village Mallu Majra, Tehsil Dhuri, vide jamabandi for the year 1989-90.

In execution of the decree, 11/36 share of land measuring 126 bighas 2 biswas was attached and sold at open auction. It was purchased by

Jagpal Singh son of Parkash Chand and Premjit son of Mewa Ram for Rs. 74,000/- in equal shares at auction sale held on 8th September, 1994.

The sale was confirmed in favour of Jagpal Singh son of Parkash Chand r/o village, Mallu Majra and Paramjit son of Mewa Ram r/o village,

Badshahpur in equal shares qua 11/36 share of land measuring 126 bighas 2 biswas on 7th April, 1985 and Sale Certificate was issued to them by

the Court on 3rd May, 1995.

Gorakh Singh and Balbir Singh sons of Jeon Singh put in objections under Sections 47 of the CPC whereby they prayed that auction sale which

took place on 8th September, 1994 and all proceedings subsequent thereto including confirmation of sale, issuance of Sale Certificate as well as

warrant of symbolic possession etc be set aside. It was alleged by Gorakh Singh and Balbir Singh aforesaid of village Mallu Majra that the J Ds

had 11/36 share in land measuring 126 bighas 2 biswas and they had purchased 250/2522 shares out of land measuring 126 bighas 2 biswas vide

sale deed Nos. 2712 and 2713 registered on 3rd October, 1994 equivalent to 12 bighas 10 biswas and they were put in possession of Killa Nos

347 and 348 in execution filed by Gurbachan Singh against the J.Ds, vide order dated 16th February, 1992 Sub Judge Ist Class,Dhuri had

ordered that only kila of land of J.Ds be put to sale for satisfying the claim of the Decree Holder and the remaining land was released from

attachment. It was alleged by the objectors in their objection petition that the auction purchasers in connivance with the revenue officials got the

entire 11/36 share of the J Ds put to sale instead of one killa of land. It was in violation of the order of the Court aimed at defeating the rights of the

objectors. In auction proceedings, the revenue officials did not mention the area of the land sold intentionally and the auction purchasers by

concealing the fact from the Court succeeded in getting sale confirmed and Sale Certificate issued regarding entire 11/36 share of the J.Ds in land

measuring 126 bighas 2 biswas. It was prayed that the auction sale that took place on 8th September, 1994 and all proceedings subsequent

thereto including confirmation of sale, issuance of Sale Certificate till issuance of warrant of symbolic possession etc. are null and void,ineffective,

illegal and are liable to be set aside.

The objectors came to know about these illegal acts about nine months ago and they filed these objections in July ,1995. These objections were

resisted by the auction purchasers Jagpal Singh son of Parkash Chand and Premjit son of Mewa Ram. It was alleged that these objections are not

maintainable when legally no execution application was pending. The land was put to auction as per attachment and the same was auctioned on 8th

September, 1994 and they purchased the land and Sale Certificate was issued in their favour. Symbolic possession has already been delivered to

them at the spot. The objectors are alleged to have purchased 12 bighas 12 biswas of land vide sale deed Nos. 2712 and 2713 registered on 3rd

October, 1994 when on 3rd October, 1994, there was no right, title or interest in the J.Ds. Their entire share of the land had already been

attached and put to auction on 8th September, 1994 vide rapat No. 193 dated 5th February, 1993 recorded by the Patwari. Objections are

abuse of the process of law as there is one more civil suit No. 320 dated 6th June,1995 titled Gorakh Singh v. Premjit Singh pending in the Court.

Vide order dated 24th November, 1997, Civil Judge (Junior Division),Dhuri dismissed the objections.

Aggrieved from this order, Gorakh Singh,auction purchaser has come up in revision (Civil Revision No. 2629 of 1998) to this Court.

Maghar and others sons of Lekh Ram also put in objections to the sale of 11/36 share of land measuring 126 bighas 2 biswas in favour of

aforesaid Jagpal Singh and Premjit alleging that vide order dated 16th February, 1994, the Court had ordered to sell the land, but the auction

purchasers in connivance with the revenue officials and at the back of the J.Ds/ objectors, fraudulently got entire 11/36 share of the land of the

objectors put to sale instead of one killa of land. It was in violation of the order of the Court. In the auction proceedings, the revenue officials did

not mention area of the land sold intentionally and the auction purchasers by concealing the facts from the Court succeeded in getting the sale

confirmed and Sale Certificate issued qua 11/36 share of land of the objectors. Auction purchasers got 1 kila of land auctioned for a mere sum of

Rs. 74,000/-.

These objections were resisted by the auction purchasers i.e. Jagpal Singh and Premjit Vide order dated 24th November,1997, the objections

of Maghar etc were dismissed by the Subordinate Judge, Ist Class, Dhuri.

The objectors J.Ds have come up in revision to this Court (Civil Revision No. 368 of 1998) against the order of sub Judge Ist Class, Dhuri.

I have heard the learned Counsel for the parties in both the revisions and have gone through the record.

It was submitted by the learned Counsel for the objectors- Petitioners that the auction sale in favour of Jagpal Singh and Premjit held on 8th

September, 1994 qua 11/36 share of land measuring 126 bighas 2 biswas belonging to Lekh Ram-dead represented by his sons Maghar Singh etc

is null and void, non-est, illegal and ineffective qua the rights of Maghar Singh etc and purchase of 12B-10B from them vide sale deed Nos. 2712

and 2713 registered on the application of Maghar Singh and Balbir Singh as on the application of Maghar Singh etc, Court had ordered only one

killa of land to be sold out of the land attached while the court had ordered release of the remaining land from attachment vide order dated 16th

February.1994. It was submitted that the J Ds had put in objections under order 21 Rule 58 of the C.P.C whereby they had prayed that the

decree could be satisfied by sale of only one bigha 10 biswas of land and, therefore, only one bigha 10 biswas of land be put to auction and the

rest of the land attached be released from attachment and the Decree Holder should have no right to put to sale the entire land of the share of the J

Ds. Gurbachan Singh decree holder made a statement on 16th February, 1994 which was dictated by his counsel that only one killa of land

belonging to the J.Ds be auctioned for the satisfaction of the decree and the rest of the land be released from attachment and in view of this

statement, only one killa of land could be put to sate and the rest of the land belonging to the J.Ds could not be put to sale. It was submitted that

putting the entire 11/36 share of land measuring 126 bighas 2 biswas was thus void. It was submitted that in the warrant of sale, the Decree Holder

in connivance with the auction purchasers got incorporated the entire 11/36 share of the land measuring 126 bighas 2 biswas. It was submitted that

in the report made by the Kanungoon 18th February, 1994, he had sought guidance as to which khasra number/s equivalent to one killa be sold

out of land measuring 126 bighas 2 biswas belonging to the J.Ds or he should sell so much share of the land of the J.Ds which was equivalent to

one killa. He also reported that till any guidance was given to him, no sale was possible. It was submitted that later the decree holder got

incorporated the entire 11/36 share of land measuring 126 bighas 2 biswas for being put to sale surreptiously in connivance with the auction

purchasers. It was submitted that the sale of entire 11/36 share of land measuring 126 bighas 2 biswas was thus an unauthorised act. The first

proclamation was issued in compliance with the order of the Court dated 16th February, 1994, though the revenue authorities were informed that

one killa of land was to be put to auction, yet by mistake of the Court, in proclamation dated July 22, 1994, the entire 11/36 share of land

measuring 126 bighas 2 biswas belonging to the J.Ds was mentioned to be put to auction. It was submitted by the learned Counsel for the

Defendants that there is a duty cast upon the Court under Order 21 Rule 64 of the CPC to sell only such property or a portion thereof as

necessary to satisfy the decree. In Ambati Narasayya Vs. M. Subba Rao and another, , the Hon''ble Court observed that there is a duty cast upon

the Court under Order 21 Rule 64 of the CPC to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of

the legislature which could not be ignored. It is of importance to note from Order 21 Rule 64 of the C.P.C that in all execution proceedings, the

court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to

satisfy the decree. If the property is large, and the decree to be satisfied is small, the Court must bring only such portion of the property, the

proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one and several. Even if the

property is one, if a separate portion could be sold without violating any provision of law, only such portion of the property should be sold. This is

not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion to sale the consideration of which is

sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not inconfirmity with this requirement would be

illegal, and without jurisdiction.

In Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, the Hon''ble Supreme Court observed that ""Under the provision

of Order 21 Rule 64 of the CPC it is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was

ordered is realised by sale of certain items, the sale of further items should be stopped. This is the logical corollary which flows from Order 21 Rule

64 of the Code. Under this provision, the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is

fully satisfied. The words "" necessary to satisfy the decree"" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in

the sale proclamation. In other words, where sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is

sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. Where the Decree Holder had obtained

another decree against the Judgment-debtor but there was nothing to show that the decree holder had approached the Court for including the

second decretal amount in the proclamation of sale, the Executing Court was not justified in selling further items on the ground that the total

amounts under the two decrees exceeded the amount fetched by selling one item. So also the fact that the J.D. did not raise any objection on that

ground before the Executing Court, was not sufficient to put him out of Court because this was a matter which went to the very root of the

jurisdiction of the Executing court to sell the properties and the non-compliance with the provisions of Order 21 Rule 64 of the Code was sufficient

to vitiate the same so far as the other properties were concerned.

In Lal Chand Vs. VIIIth Addl. District Judge and others, , Hon''ble Supreme Court observed that where the decree holder managed to get all

other lands included in execution and getting sale in his favour and no attempt was made for sale of reasonable portion, auction sale is vitiated.

It was submitted that where the proclamation is drawn without application of mind, sale conducted would be void. In support of this

submission, he drew my attention to Desh Bandhu Gupta Vs. N.L. Anand and Rajinder Singh, where it was held that service of notice on J.D. is

mandatory. Sale without notice is nullity. The Court should apply its mind to the need for furnishing the relevant and material particulars in the sale

proclamation. Record should indicate application of judicial mind. It was submitted that in this case, there was no application of judicial mind by the

Executing Court. The Executing Court had ordered release of the entire land attached but only one killa of land vide its order dated 16th February,

1994. If that was so, only one killa of land could be sold. In the proclamation of sale, if more than one killa of land was mentioned, that would

indicate no application of mind by the Executing Court. Particularly when the Kanungo had asked for the guidance of the Court as to which khasra

number/numbers, he should sell out of the land attached measuring 126 bihgas 2 biswas equivalent to one killa or he should sell some share

equivalent to one killa.

It was submitted that the it was of no consequence if sale was confirmed and Sale Certificate issued so far as the claim of the J.Ds to the

setting aside of the sale which is nullity, is concerned. In Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, , the Hon''ble

Supreme Court observed that if the J.D. did not raise an objection before the Executing Court, that was not sufficient to put him out of Court

because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and non-compliance with the

provisions of Order 21 Rule 64 of the Code was sufficient to vitiate the sale.

In M/s Farid Paper Mills (P) Limited v. Punjab Financial Corporation, (1994)108 P.L.R. 66, it was held that where J.D. was never served

with a notice as envisaged under Order 21 Rule 66 (2) of the CPC of intended sale as envisaged under Order 21 Rule 66 (2) of the Code, sale

can be challenged even after confirmation. Order 21 Rule 66 is based on the principle that no order to the detriment of a party can be passed

against him unless he is heard. It was held in Pandurangan and Anr. v. Dasu Reddy., A.I.R.1973 Mad. 197 that the Executing Court could under

certain circumstances entertain the objection filed u/s 47 of the CPC even after sale had been confirmed and there was no complete embargo

placed on the Court. In AIR 1939 222 (Lahore) it was held that sale was liable to be challenged even after confirmation in the event that notice of

auction sale had not been given to the J.D. In this case, it was submitted that no notice was given of the proclamation made under Order 21 Rule

66 of the Code to the J.D regarding the intended sale of 11/36 share of land measuring 126 bighas 2 biswas and that if notice had been given to

him, he could have brought to the notice of the Court that only one killa of land could be sold as rest of the land had been released from

attachment. It was submitted that direction was to the Kanungo with regard to the sale of one killa of land only on the warrant of sale dated 5th

May, 1994. In pursuance to this warrant of sale, the Kanungo proceeded to effect sale but no body turned up as is clear from the report of the

Kanungo dated 14th June, 1994 at page 34 of the execution file. It was submitted that when the warrant was for sale of one killa of land only, how

could sale of 11/36 share of land measuring 126 bighas 2 biswas be effected and sale effected thus was absolutely void. It was submitted that

application u/s 47 of the CPC was maintainable even after ''the so called sale''. In support of this submission, he drew my attention to Harnatha

Rao v. Smt. Parvathamma, 1999 (1) R.C.R. (Civil), 477, where it was held that where the trial Court failed to perform its duty to determine as to

what extent, the sale of property is necessary in order to satisfy the decree, sale has to be set aside even if confirmation is made absolute. Sale held

in violation of Rule 64 as well as without Execution Court applying its mind to Order 21 Rule 64 of the Code and without examining whether only a

portion of the property could be sold, sale not being in conformity with the requirement of Order 21 Rule 64 of the CPC is illegal, and without

jurisdiction and so null and void.

In Mangal Prasad (dead) by LRs. and another Vs. Krishna Kumar Maheshwari and others, it was observed by the Hon''ble Supreme Court

that application u/s 47 of the CPC cannot be treated as application under Order 21 Rule 90 of the C.P.C when some of the grounds of the

objections set out in the application u/s 47 are not such as are covered Order 21 Rule 90. Hence, the bar prescribed under Sub-rule (2) of Order

21 Rule 89 would not come into play at all. Merely on the reason of the pendency of the objections u/s 47, it could not be said that the application

under Order 21 Rule 89,would be necessarily barred. However, auction sale would not be set aside without giving equitable relief to the auction

purchaser. Thus, where the sum of Rs. 1.44 lacs of the auction purchaser remained blocked for a substantial number of years, the judgment debtor

was directed to pay that amount along-with 12% interest to the auction purchaser as a condition for getting the sale set aside. In Rajarethna Nikka

v. Parmeswara Kurup, 1997 (2) CCC, 26 (Ker), it was held that where the J.D had earlier applied for setting aside the sale under Order 21 Rule

90 of the CPC is not estopped from filing an application u/s 47 of the CPC It was submitted that such objections are covered by articles 127 and

137 of the Limitation Act. Such objections can be filed within three years of the date, the sale took place. 20. In Merla Ramanna Vs. Nallaparaju

and Others, , it was held that Article 168 applies only when the sale is one which has under the law to be set aside as for example under Order 21

Rule 89, 90 and 91, Civil.P.C, but it has no application when the sale is inoperative and void. When a sale in execution is inoperative and void, an

application by a judgment debtor to have it declared void and for appropriate reliefs is governed by. Article 181 and not Article 166. Article 166

and Article 181 of the Limitation Act of 1908 are equivalent to Articles 127 and 137 of the Limitation Act, 1963. In Santa Singh v. Dial Singh and

another, (1980)82 P.L.R., 766, it was held that period of limitation for an objection petition u/s 47 of the Code of Civil Procedure, 1908, is

governed by Article 181 of the Limitation Act, 1908 corresponding to Article 137 of the Limitation Act, 1963 and the period of limitation for such

a petition is three years from the date when the right to apply accrues.

It was submitted that if there was mis-statement in the proclamation of sale by the Court, J.D cannot be presumed to have waived objection. In

AIR 1945 67 (Privy Council) it was held that Court is not intended to Act blindly on information supplied by the parties. Apart from the duty cast

upon the Court, Rule 66 (3) provides that every application for an order for sale shall be accompanied by a statement signed and verified in the

manner mentioned and containing so far as they are known to, or can be ascertained by the person making the verification, the matter is required

by Order 21 Rule 66 (2) to be specified in the proclamation.

In pith, the learned Counsel for the Petitioner submitted that the sale in favour of the auction purchasers was void inasmuch the Court did not

apply its mind to this aspect of the matter that only a very small portion of the property belonging to the J.Ds could satisfy the decree and the entire

share of the J.Ds was not required to be sold. Sale of the entire share of land of the J.Ds without any application of mind by the Executing Court

on this aspect of the matter is nullity and as such, auction sale could be got set aside within three years of the date when it was effected and also

that if the J.Ds had been given notice of the proclamation under Order 21 Rule 66 of the Code, the J.Ds could have saved their entire land being

put to sale and requested for permission to them to effect private sale or at any rate when only a small portion could satisfy the decree and also that

when only one killa of land was kept under attachment and the rest of the land had been released from attachment and only one killa of land could

be sold.

The auction purchasers on the other hand submitted that the objections did not lie when the J.Ds had not applied under Rule 89 of the CPC for

setting aside the sale. It was submitted that the J.Ds could deposit the decretal amount and thus avoid the sale being confirmed in view of the

provisions of Order 21 Rule 89 CPC It was submitted that the objections were filed on 17th July, 1995 while the sale had taken place on 8th

September, 1994. The confirmation of sale will relate back to the date when the sale took place and in support of this submission, he drew my

attention to Janak Raj Vs. Gurdial Singh and Another, where it was held that title of the purchaser related back to the date of sale and not to that

of its confirmation. It was submitted that the objection petition was barred by time. Law of limitation has to be applied with all its rigour when the

statute so provides and the Courts have no powers to extend the period of limitation on equitable grounds. In support of this submission, he drew

my attention to P.K. Ramachandran Vs. State of Kerala and Another, , and also to Prem Raj alias Prem Singh Vs. IIIrd Addl. Dist. Judge, and

others, , where it was held that objections to execution cannot be entertained after the sale in execution proceedings is con-fumed.

It was submitted that where a property is put to sale by public auction, ordinarily it does not fetch market price prevalent at the relevant time

and merely because auction sale did not fetch market price, is no ground that auction sale should be set aside. In support of this submission, he

drew my attention to Om Parkash Vs. Land Acquisition Collector, Urban Estates,

It was submitted that after the sale is confirmed, it becomes absolute and in support of mis submission, he drew my attention in Smt. Raminder

Kaur and Another Vs. Kharaiti Lal and Others, It was submitted that if there was notice of attachment to the J.Ds, no fresh notice is required when

sale is sought to be confirmed. Attachment is necessary preliminary to sale and object of attachment is to give notice to the J.Ds not to alienate the

property and to the public not to accept any alienation from him. If the property has not been attached but put to sale, it will become material

irregularity only if that property has been privately alienated before Court, auction sale is confirmed. If it is not so alienated, Court auction sale is

not a nullity or invalid for failure to attach it. The authority on the point is Nanhey Khan Vs. Lala Bhagwan Dass and Another, .

It was submitted that failure to attach the property could have effected the title of the auction purchasers i.e. Jagpal Singh and Premjit vis-a-vis

the title of Gorakh Singh and Balbir Singh. Jagpal Singh and Premjit purchased the property on 8th Septem-ber,1994 (while sale was confirmed

on 7.4.1995) while Gorakh Singh and Balbir Singh purchased land measuring 12 bighas 10 biswas vide sale deed Nos. 2712 and 2713 on 3rd

October, 1994. It was submitted that the provisions of Order 21 Rule 92 of the C.P.C make it clear that after sale is effected, the Code does not

contemplate any objection to the sale being raised except those covered by Rules 89,90 and 91, if any other objection such as those u/s 60 were

permissible after sale, Rule 92 would not have been made it obligatory for the Court to confirm the sale in the absence, or in the of dismissal, of

application made under Rules 89, 90 and 91 of the code. The authority on the point is AIR 1942 153 (Lahore) . In this case, auction sale in favour

of Jagpal Singh and Premjit Singh cannot be sustained because of the non compliance of the provisions of Order 21 Rule 64 and also because the

Court had ordered land measuring one killa only to be put to auction while actually land measuring 38 bighas 11 biswas was put to sale. Auction

sale was thus, an absolute nullity. For setting aside such a sale, mere is three years'' limitation.

For the reasons given above, both these revisions succeed and are allowed. Auction sale in favour of Jagpal Singh and Premjit Singh is set

aside. Maghar Singh etc shall pay a sum of Rs. 74,000/- to Jagpal Singh and Premjit with interest @ 12% p.a. w.e.f. 23rd September, 1994 till

date this payment is made to them.