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Judgment
M.S. Liberhan, J.—This revision petition by the judgment debtor arises out of the orders of the Courts below confirming the sale of the immovable property by auction.
Suit of the Respondent firm decree holder for recovery of about Rs. 53,000/- was decreed with future interest in the year 1984. The decree was finally confirmed in Regular Second Appeal on October 1, 1987.
The decree holder took out the execution of the decree by attachment and sale of the disputed land measuring 16 Kanals 5 Marlas belonging to the judgment debtor. Notice was served on the judgment debtor before attachment. Yet, no objections were raised with respect to the attachment. The land in dispute of the judgment debtor was attached vide order dated September 9, 1986. Notice for drawing up the proclamation of sale by auction under Order 21 Rule 66 of the CPC (hereinafter referred to as the ''Code'') was served on the judgment debtor and the decree holder. Since the judgment debtor did not appear, he was ordered to be proceeded ex-parte. Schedule for auction was drawn. Date for fixation of the proclamation in Court premises, at the spot, and date of auction were fixed No auction took place as scheduled as the judgment debtor applied for stay of the execution proceedings to the executing Court during the pendency of the appeal in terms of Order 41 Rule 6 of the Code The executing Court dismissed the application and ordered the auction according to the schedule refixed in the presence of the counsel for the parties. July 1, 1987 was the date of auction fixed after complying with the fixing of proclamation of sale in the Court premises and at the spot. Further, a date for report of auction was fixed as July 23, 1987. In terms of the date notified in the proclamation of sale, the Naib Tehsildar auctioned the land in dispute at the spot on July 1, 1987. A number of persons participated in the bid and finally the auction purchaser gave the highest bid. The auctioneer accepted 1/4th of the bid. Resultantly, the auction-purchaser deposited the same on July 3, 1987. The balance consideration of 3/4th was deposited within fifteen days of the date of auction i.e. on July 10, 1987.
The auction-purchaser, on expiry of 30 days i.e. on August 31, 1987, applied to the Court for issuance of the sale certificate.
The judgment debtor raised objection to the confirmation of sale that the decree holder gave a bid through his father and purchased the property at a very low price. The prevailing market rate was alleged to be Rs. 1,50,000/- while the highest bid which was accepted was only of Rs. 65,000/- it was averred that since there was no prior permission of the Court permitting the decree holder to purchase in terms of Order 21 Rule 72 of the Code, the judgment debtor was prejudicially affected. The objection petition though bears the date as September 29, 1987, but it was presented to the execution Court on October 5, 1987. A prayer for setting aside the auction was made.
The auction-purchaser controverted the trump version of the judgment debtor. It was stated that the decree was in favour of a firm and his son was only a partner of the firm. He had purchased the property in dispute in his own right and for himself; and not for the decree holder. The objection petition having been filed after a lapse of 60 days from the date of auction, was said to be barred by time.
The executing Court vide its order dated November 12, 1987, found that the property was not purchased by the decree holder through his father as the decree was in favour of the partnership firm styled as M/s. Keshav Rai Naresh Pal Singh and the auction-purchaser was father of one of the partners of the firm. No permission was taken from the Court to bid by the auction-purchaser as he was not the decree holder. The objections were rejected and sale certificate was issued.
The judgment debtor impugned the judgment in appeal wherein it was averred that since the auction purchaser was living with his son, who was the partner of the decree-holder firm, the land in dispute was purchased by the auction-purchaser for the decree holder. It was further contended that in the absence of the notice under Order 21 Rule 66 of the Code served on the judgment debtor and the sale having prejudicially affected the rights of the judgment debtor, it was liable to be set aside. The lower appellate Court rejected both the contentions holding that no objection with respect to the service of the notice under Order 21 Rule 66 of the Code was raised before the executing Court and, in fact, record showed that notice was upon the judgment debtor in terms of Order 66 through Jagir Singh Bajwa, a partner of the judgment debtor firm. It was found that since there was no allegation that the consideration was advanced by the partner of the decree holder for the purchase of the property nor it had been alleged that any other step had been taken by the decree holder which would amount to purchase by the auction-purchaser on behalf of the decree holder-firm or its partner, no permission was required as envisaged by Order 21 Rule 72(3) of the Code Some observations with respect to the conduct of the judgment debtor were also made.
The lower appellate Court further found that since the application for setting aside the sale was made on October 5, 1987, i.e. beyond 60 days, counting the limitation from any date i.e. from the date of auction, from the date of deposit of the total amount i.e. July 10, 1987 or even from the date of report made by the Sub Divisional officer (Civil) dated August 3, 1987, the objection petition was clearly beyond the statutory period of limitation of 60 days as envisaged by Article 127 of the Limitation Act. The Additional District Judge dismissed the objection petition as barred by time.
The counsel for the Petitioner urged that in view of the fact that the auction-purchaser is the father of one of the partners of the decree holder firm. it should be assumed that he purchased the land in dispute for the benefit of the decree holder. This fact was further corroborated from the fact that the decree holder and his father were living together. I find no force in the contention raised. No such presumption can be drawn solely on account of the relationship of the auction-purchaser with the decree-holder, in particular when no allegation was made in the objection petition that the land in dispute was purchased by him on behalf of the decree-holder or any consideration had been passed by the decree-holder to the auction purchaser for the purchase. There was no allegation that the decree holder and his father were living jointly or have acted collusively. The allegation is that the decree holder had give a bid through his father without the prior permission of the Court for which there is neither an iota of evidence on the record nor the judgment debtor raised any issue to be tried in this respect. An vague allegation had been made that the judgment debtor was prejudicially affected and it would cause loss to him. Nothing was brought on the record to show in what manner the auction prejudicially affected the right of the judgment debtor or caused irreparable injury. Numerous people participated in the auction. It was an open auction No objection was taken with respect to the auction. Consequently I affirm the findings of the Courts below to the effect that the auction purchaser did not purchase the land in dispute on behalf of the decree holder or for his benefit. There is neither any evidence nor any plea of the decree holder and his father living together Even if they were living together, it is of no consequence. There is also no evidence on the record that the market value of the land in dispute was Rs. 1,50,000/- at the time of auction.
The counsel for the Petitioner urged that there was no service of notice under Order 2; Rule 66 of the Code on the judgment debtor, Such a plea cannot be permitted to be raised in the absence of any plea having bean taken in the trial Court as it requires evidence Even the lower appellate Court found that notice in terms of Order 21 Rule 66 was taken out and served on the judgment debtor as a fact. No error in the same has been pointed out.
The counsel for the Petitioner contended that the executing Court directed the Sub-Divisional Officer (Civil) to conduct the sale in terms of Order 21 Rule 66 of the Code which reads as under:
Sales by whom conducted and how made Save as otherwise prescribed. every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.
It was urged that, in fact, since the Naib Tehsildar conducted the sale, it would amount to sale made by a person unauthorised. The auction would be void. The counsel for the Petitioner in order to support his contention relied on Darbara Singh v. Gram Sabha of village Bhokhra and Ors. 1985 PLJ 235, Mul Raj v. Bura Mal AIR 1931 Lah 344 (1), and Govinda Padayachi Vs. Velu Murugayya Chettiar and Another, .
In my considered view, the submission is destitute of the facts to constitute the objection raised. There was no plea that the auction was held by an unauthorised person in the objection petition. It is a disputed question of fact whether the auction was conducted by an authorised or unauthorised person. This objection was not even raised before the lower appellate Court. It is being raised for the first time in these revisional proceedings, which is too late a stage.
Not only that the plea was not raised, there is no specific order by the sub Judge directing the Sub Divisional Officer (Civil) to conduct the sale. The learned Counsel has taken me through the record and urged that in view of the sale proclamation issued by the Court having been marked to the Sub Divisional Officer (Civil), it should be deemed that the Court had directed the Sub Divisional Officer (Civil) to conduct the auction. No authority to the Sub Divisional Officer (Civil) to delegate his function as an auctioneer was given by the executing Court. The proclamation issued by the Court has been simply marked to the Sub Divisional Officer (Civil). Even there is a doubt whether the signatures in the endorsement are of the Presiding Officer or of the Reader of the Court. There is no zimni order or otherwise any order on the record directing the Sub Divisional Officer (Civil, to conduct the sale.
The High Court Rules and Orders, Volume I Chapter 12-N Rule 4 provides that sale of an agricultural land shall be carried out by an order addressed by the Civil Court to the Collector or such Revenue Officer as he may appoint in this behalf u/s 141 of the Punjab Land Revenue Act and subject to the rules made thereunder and the provisions of the Code contained in Order 21 Rules 44, 45, 74 and 75. The provision reads as under:
The attachment and sale of the land and its produce will be carried out by an order addressed by the Civil Court to the Collector or such Revenue Officer as he may appoint in this behalf u/s 141 of the Punjab Land Revenue Act and subject to the rules made thereunder and the provisions of the Code contained in Order 21, Rules 44, 45, 74 and 75.
Section 141 of the Punjab Land Revenue Act provides that orders issued by the Civil Court for sale shall be addressed to the Collector or such Revenue Officer as the Collector may appoint in this behalf and shall be executed by them in accordance with the provisions of the law applicable to the Court issuing the orders and with any rules consistent therewith made by the Financial Commissioner with the concurrence of the High Court and the previous sanction of the State Government Section 141 reads as under:
Orders of Civil and Criminal Courts for execution of processes against land or the produce thereof to be addressed to a Revenue Officer--
Orders issued by any Civil or Criminal Court for the attachment, sale or delivery of any land or interst in land, or for the attachment or sale of the produce of any land, shall be addressed to the Collector or such Revenue Officer as the Collector may appoint in this behalf, and be executed by the Collector or that officer in accordance with the provisions of the law applicable to the Court issuing the orders and with any rules consistent there with made by the Financial Commissioner with the concurrence of High Court and the previous sanction of the State Government.
Of the rules framed thereunder, Rule 23) provides as under:
Sale by whom conducted-Sale under these rules shall be conducted by the Collector in person or by an Assistant Collector generally or specially empowered by him in this behalf.
It is not disputed at the Bar that all the Naib Tehsildars have been declared to be the Assistant Collectors for conducting the sales.
In my considered view, merely marking the proclamation to the Sub-Divisional Officer (Civil) cannot be deemed to be an order specifically directing the Sub Divisional Officer (Civil) to conduct the sale. Keeping in view the provisions of Order 21 Rule 65 of the Code read with Section 141 of the Punjab Land Revenue Act and Rule (3), it can safely be inferred that the sale had been effected by a person duly authorised. In the absence of express order, nothing can be read as the orders of the Court to infer that the Sub-Divisional Officer (Civil) was directed to effect the sale or any embargo was put on his powers not to direct his subordinate Assistant Collectors to auction the property in dispute at the spot. Darbara Singh''s case (supra) is not attracted in the facts of this case inasmuch as in the said judgment it was found as a fact that the Court directed the Sub Divisional Officer (Civil) to conduct the sale and the sale was conducted in violation of the express order of the Civil Court by a Qanungo. In view of the violation of the directions of the Court, this Court found that the auction was a void auction. Further, it was found as a fact that the auction of the land in dispute conducted by the Qanungo resulted in a prejudice to the judgment debtor inasmuch as the property worth Rs. 50,000/- was sold for Rs. 9,000/- only. There is no dispute with the principle of law laid down. However, the facts in hand differ substantially and the principle of law laid down cannot be applied to the facts of this case.
So far as Mul Raj''s case (supra) is concerned, there cannot be any dispute with the principle laid down therein to the effect that when the Court is empowered to make the order, it has the jurisdiction to see that the order is carried out in effect and the powers u/s 151 of the Code can be invoked for the ends of justice or to prevent the abuse of the process of the Court. Herein, it has not been pointed out which order of the Court has not been carried out.
In view of my above observations, the contention raised that the Court ordered the Sub Divisional Officer (Civil) to conduct the auction, was in fact not there. Consequently, the principle laid down in Mul Raj''s case (supra) is not attracted.
In Govinda Padaychi''s case (supra), the principle laid down by the Court is that the Court can, where its orders have not been carried out or they have been misread, correct its own error. No error which has mislead the Court has been pointed out. No irregularity or illegality in the auction was pleaded in the objection petition nor has been pointed out in this revision petition. Thus, the judgment cited is not pari materia with the facts in this case.
Jetha Mal and Anr. v. Punjab and Sindh Bank Ltd. AIR 1932 Lah. 525, has been noted as it has been cited at the Bar though none of the principles laid down therein has any applicability to the facts and circumstances of this case.
The counsel for the Respondent urged that marking the sale proclamation to the Sub Divisional Officer (Civil) was only a ministerial act and the Court only issued the proclamation of sale it was sent to the Sub-Divisional Officer (Civil) for conducting the auction in terms of Section 141 of the Punjab Land Revenue Act. I find force in the contention raised by the counsel for the Respondent and am of the view that taking into consideration the fact that on the second copy there was no marking to the Sub-Divisional Officer (Civil) and there was no specific order directing him to auction the land in dispute in person and taking into consideration the High Court Rules and Orders read with Section 141 of the Punjab Land Revenue Act and rules framed there under, the auction has been carried out by a duly authorised person.
The counsel for the Respondent further contended that the objection petition is barred by time in view of the provisions of Section 127 of the Limitation Act which provides that to set aside a sale in execution of a decree including any such application by a judgment debtor, the period of limitation shall be 60 days from the date of the sale.
It is not disputed that the objection petition was filed on October 5, 1987. The auctioneer accepted the highest bid of the Respondent on July 1, 1987 when 25% sale consideration was accepted and was deposited in the treasury on July 3, 1987. No objection was raised to the said fact within 15 days as envisaged by Order 21. The balance amount of 75% was deposited on July 10, 1987 under the orders of the Court, which will make it obvious that the Court had accepted the highest bid of the auction-purchaser and declared him to be the purchaser. The return of the proclamation after executing the same was again a ministerial act and non-receipt of the report on July 23, 1987 by the Court is of no consequence. Delayed report has not prejudicially affected the sale in any manner nor it has caused any prejudice to the judgment debtor. The decreed amount had already been with drawn by the decree holder on November 27, 1987. It has been observed in Nur Din v. Bulaqi Mal and Sons AIR 1931 Lah. 78 that the actual date of sale is the date which would be terminus quo for commencement of the limitation under Article 127 of the Limitation Act, which is admittedly July 1, 1987. The above observations of mine are supported by the view taken in Hoshnak Ram and Anr. v. Punjab National Bank Ltd. AIR 1936 Lah. 555, and Lala Ram and Another Vs. Bhajani, Even otherwise, if any other date is taken i.e. the date of auction or deposit of 1/4th or deposit of the balance amount or even the date of the receipt of the report of the Sub-Divisional Officer (Civil) i.e. August 3, 1987, as terminus quo for commencement of the limitation, the objection petition is clearly barred by time.
The counsel for the Petitioner urged that since the sale was void, there is no limitation and relied upon Ballabhdas Lachminarayan Maheshwari v. Sabhati Keshare Singh and Anr. AIR Nag 52 and AIR 1940 261 (Oudh) . I find no force in the contention raised by the counsel for the Petitioner. The sale is not void in any respect. There is no quarrel with the proposition laid down in Ballabdas''s case (supra) and S. Hadi Husain''s case (supra) though the same are dissented in Lala Ram''s case (supra). I am of the view that the objection petition is barred by time.
The counsel for the Petitioner further submitted that the value of the land is more than Rs. 1,50,000/- and it has been sold for a partry sum of Rs. 65,000/- only; thus the judgment debtor has been prejudicially affected. The counsel for the Respondent in order to repel the said submission, relied upon M/s. Kayjay Industries (P) Ltd. v. M/s. Asnew Drums (P) Ltd. and Ors. AIR 1944 S.C. 1331 wherein it has been observed that inadequacy of the price is no ground to set aside the auction. The inadequacy of the price can only be looked into as one of the circumstances if any irregularity or fraud or illegality is pointed out in the conduct of the sale. It is the duty of the Court to satisfy itself having regard to the market value of the property that the price offered was not unreasonable. There is not even an iota of evidence on the record to prove the market value of the land in dispute much less to show that the price offered was unreasonably low. No material irregularity in the conduct of the sale was pointed out. Even assuming that there was a substantial injury, but the same without material irregularity in the auction is not enough and not directly linked with inadequacy of the price to set aside the sale. In the judgment cited numerous reasons have been given for low price in Court auction. The said reasons are like uncertainty in the sale, possibility of litigation, uncanny calculations before striking the bargain, nature of the property, too many adjournments for postponing the date of sale.
The counsel for the Respondent pointed out that there was no error of jurisdiction and the impugned order cannot be interfered with while exercising the revisional jurisdiction and relied upon AIR 1973 S.C. 76. I need not express any opinion on this question in view of my observations made above.
The counsel for the judgment Debtor offered Rs. 40,000/- to the auction purchaser in addition to the sale consideration deposited by him. The auction purchaser declined to accept the said offer. This fact has been noted as it was urged by the counsel for the Petitioner that this fact itseif is sufficient to set aside the sale. I am afraid, if Court auctions permitted to be set aside on offers being made at are a higher price subsequent to the auction, there will be no certainty about the auction and it will prejudice the very system of Court auctions and will result in a rule of thumb which cannot be permitted.
In view of my above observations, the revision petition is dismissed with no order as to costs.