Shankar Lal Rungra vs Ram Roy Choudhary and Others

S.B. Sinha, J.—This application is directed against an order dated 15.2.1991 passed by Shri B.K. Choudhary, 1st Additional Munsif, Giridih in Misc. Case. No. 15 of 1984 whereby and whereunder the said learned court held that composite application u/s 47 read with Order XXI Rule 90 of the CPC is maintainable.

In view of the fact that only a question of law is involved in this case, it is not necessary to consider the facts of the matter in great details.

Suffice it to say that the Commissioner of Giridih Municipality filed a suit being S.C.C. No. 165 of 1977 in the court of the Munsif, Giridih for recovery of arrears of Municipal taxes and other dues against Shambhunath Roy Choudhary, the father and predecessor-in-interest of the petitioner and the opposite party No. 2.

The said suit was decreed ex parte on 26.5.1982.

An execution was levied by the decree holder which was registered as Execution Case No. 115 of 1983. As alleged the judgment debtors did not appear even upon notices served upon them, the building in question was attached and upon issuance of sale proclamation, the same was sold in auction on 16.4.1984, which was purchased by the petitioner for a sum of Rs. 25,0,00/ -.

No objection having been raised within the prescribed period, the auction sale was confirmed on 17.5.1984.

On 29.5.1984, an application was filed for a declaration that the decree passed in S.C. 6 Case No. 165/77 and consequently auction sale held in execution case No. 115 of 1983 were nullities, as allegedly Shambhu Nath Choudhary was dead at the time of passing of the said decree. It was alleged that Shambhu Nath Choudhary died in the year 1938.

It was further alleged that the auction sale was vitiated in view of various material irregularities, committed in the matter of proclamation of notice.

A copy of the said application is contained in Annexure I to the Civil Revision application.

A rejoinder thereto was filed by the decree holder wherein it was denied that Sambhu Nath Choudhary died in the year 1938 as alleged by the applicant.

The said rejoinder is contained in Annexure 2 to the Civil Revision Application.

The petitioner, who as noticed hereinbefore, is an auction purchaser, also filed an objection alleging therein that a composite application u/s 47 read with Order XXI Rule 90 of the CPC was not maintainable.

The said petition is contained in Annexure 3 to the Civil Revision application.

The opposite party Nos. l and 2 filed a reply to the said application contending inter alia that the said application was maintainable.

In this case, a counter affidavit has been filed on behalf of the opposite party Nos. 1 and 2.

In the said counter affidavit, it was reiterated that Shambhu Nath Choudhary died on 11.4.1938. It was also reiterated that the plaintiff practiced fraud upon the court by obtaining false report from the process server regarding service of notice both in the suit as also in the execution case.

It was further submitted that execution case was filed in relation to a decree for the recovery of Rs. 284.00 only wherein the suit property worth Rs. 5 lacs was attached and the same was grossly under valued at Rs. 1,410.00 and the judgment debtors were thus misled by the under valuation of the property.

It was further alleged that the petitioner purchased the said property in auction in collusion with Decree Holder Municipality.

By reason of the impugned order, as noticed hereinbefore, the learned court below held that a composite application u/s 47 read with Order XXI Rule 90 of the CPC is maintainable.

The learned court below, in support of his order, inter alia relied upon a decision of the Patna High Court in Jamila Khatoon and Ors. v. Dyanand Thakur and Ors. AIR 1928 Patna, 272.

Mr. N.K. Prasad, the learned Counsel appearing on behalf of the petitioner submitted that the scope of the provisions contained in Section 47 and that of Order XXI Rule 90 of the CPC are absolutely different, separate and distinct.

According to the learned Counsel, in a case wherein, the decree is a nullity, an application u/s 47 of the CPC may be maintainable, whereas an application under Order XXI Rule 90 of the CPC is maintainable when an allegation of material irregularity or fraud in publishing or conducting the auction sale is made.

The learned Counsel, in this connection has strongly relied upon a Full Bench decision of the Patna High Court in Awadh Bihari Tewari and Another Vs. Sudarsan Rai and Others, .

Mr. M.Y. Eqbal, the learned Counsel appearing on behalf of the opposite party Nos. 1 and 2, on the other hand, submitted that there is nothing to show that in law a composite application u/s 47 read with Order XXI Rule 90 of the CPC would not be maintainable.

The learned Counsel, in this connection has placed strong reliance upon in Bibi Jamila Khatoon and Others Vs. Dayanand Thakur and Others, , and in Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, .

Section 47 and Order XXI Rule 90 of the Code of Civil Procedure, which are material for the purpose of this case, reads as follows:

Section 47, Code of Civil Procedure:

Question to be determined by the court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

(3) Where a question arises as to Whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Court.

Order XXI Rule 90

Application to set aside sale on ground of irregularity or fraud - (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a reteable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity of fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on before the date on which the proclamation of sale was drawn up.

Explanation - The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.

There cannot be any doubt that Section 47 of the CPC is of wide import whereas the application of Order XXI Rule 90 of the CPC is restrictive in nature.

Thus, a case which fails u/s 47 of the CPC all questions relating to execution, discharge or satisfaction of the decree arising between the decree holder and the judgment debtor may be determined under the said provision but the same cannot be construed in such a way that Order XXI Rule 90 of the Code of Civil Procedure, may be rendered redundant.

In a case where validity of an auction sale in execution of a decree is itself under challenge, the same comes within the purview of Section 47 of Code of Civil Procedure, whereas if a sale is otherwise valid but the same is questioned on the ground of material irregularities in the publication of notice or conduct of the sale, only such a case falls within the purview of Order XXI Rule 90 of the Code of Civil Procedure.

In other words when a decree passed by a court or an auction sale is contended to be void ab initio and/or a nullity, Section 47 of CPC will be attracted in such a case and not Order XXI Rule 90 of the Code of Civil Procedure.

Thus in a case where a decree is sought to be challenged on the ground that the same was passed as against a dead person, the decree being a nullity, application to set aside the sale can be determined only u/s 47 of the CPC and not under Order XXI Rule 90 thereof.

In Awadh Bihari Tewari and Another Vs. Sudarsan Rai and Others, , a Full Bench of this Court considered various decisions including the decision relied upon by this Court below in Bibi Jamila Khatoon and Others Vs. Dayanand Thakur and Others, and held that where a decree has been passed against a dead person, such a decree being a nullity, the same can be questioned in an application u/s 47 of the Code of Civil Procedure.

It held:

The first part of the argument is unassailable, that is, the decree passed, in the present case, was a nullity so far as Mt. Sonmukha Kuer''s share in the holding was concerned and it does not affect in any way her legal representative. The sale in execution of that decree did not touch her interest and the auction-purchaser and his transferees, the present two appellants, did not acquire any title in respect of her share in holding. But the other part of the argument that this question cannot be gone into in a proceeding u/s 17, cannot be accepted.-A question about the executability of a decree is a question relating to the execution of that decree. In spite of a decree being null and void for some reason, if it is put into execution, a party to the suit in which the decree was passed or his representative must have a chance, in the execution case, to raise objections against the executability of that decree either in whole or in part.

It was further held that the executing court has been given exclusive jurisdiction u/s 47 of the Code of Civil Procedure, as to all matters relating to the execution of a decree and as a general rule, a separate suit has been barred.

In holding so, this Court relied upon a decision of the Supreme Court in Seth Hiralal Patni Vs. Sri Kali Nath, . The Full Bench however considered the scope of Order XXI Rule 90 of the CPC also under which provision the application was also filed.

In that case, it was found by the court of first instance that there was palpable fraud in publishing and conducting the same.

It further held:

Unless a person''s interest, be it proprietary, possessory or pecuniary, are affected by the sale, he cannot come, on the ground of material irregularity or fraud in publishing and conducting the sale to annul it.

In Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, , it was held that question as to whether the decree was absolutely illegal or void or not should be judged on the touchstone as to whether the judgment debtor can waive the benefit conferred upon him under the provision of a statute or by reason of an action of the court.

The matter has also been considered by a Full Bench decision in A.P.V. Rajendran Vs. S.A. Sundararajan and Others, , the Madras High Court while considering as to whether the application falls under the provision of Section 47 read with Order XXI Rule 90 of the CPC held that the substance of the application must be considered in order to determine whether the application is one which falls u/s 47 or under Order XXI Rule 90 of the Code of Civil Procedure.

In this case, as noticed hereinbefore, the sale was challenged on the ground that not only the sale was, a nullity but the decree passed was also a nullity.

In Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, , the Supreme Court merely observed that a judgment debtor can ask for setting aside a sale in execution of a decree u/s 47 of the CPC and in special circumstances which attract the provision of Order XXI Rule 90 of the CPC he may also apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale provided he further proved to the satisfaction of the court that he has sustained substantial injury by reason of the irregularity or fraud.

In that case, the application was not filed under Order XXI Rule 90 of the Code of Civil Procedure. The Supreme Court thus, could not have any occasion to consider as to whether a composite application u/s 47 read with Order XXI Rule 90 of the CPC will be maintainable.

However, the point at issue has succintly been decided by the Full Bench of our High Court in Awadh Bihari''s case (supra), which is binding upon this Court.

However, I may observe that in a given case where both the ingredients of Section 47 and Order XXI Rule 90 of the CPC are available to a judgment debtor and/or any person entitled to file such an application, in my opinion there is no reason as to why a prayer to declare the auction sale to be a nullity and in the alternative a prayer to set aside such sale on the ground of material irregularity in publishing or in conduct of the auction sale can not be made. In such an event, the court may take up the question as to whether the decree or the auction sale is nullity or not and in the event the answer is in affirmative, it may not decide the alternative prayer; whereas it may proceed to do so, in the event, the answer to the first question is rendered in negative.

However, as in this case, no such alternative prayer has been made but a composite application has been filed, it must be held that the application should be treated to be u/s 47 of the CPC and not under Order XXI Rule 90 thereof.

In this situation, in my opinion, as some grounds have already been made out, which if proved would bring the case within the purview of Order XXI Rule 90 of the CPC in my opinion, it would be open to the petitioner to file an application separately which may be taken up for consideration by the court upon adjudication, the petitioner in question treating the same to the one u/s 47 of the Code of Civil Procedure, fails. If an application for condonation of delay is filed before the court below, I am sure the same shall be considered on its own merits.

In this view of the matter, the application is allowed in part and the impugned order is modified to the extent that the learned court below shall proceed to determine the case as if thereby an objection u/s 47 of the CPC has been filed.

However, in the facts and circumstances of the case, there will be no order as to costs.