Shiv Narain Tewari vs District Magistrate and Others

R.A. Sharma, J.—Petitioner had taken loan from U.P. Financial Corporation for establishing a factory in the name and style of M/s. Nisha Oil Udyog village Shah Tahsil and District Fatehpur for producing mustard oil. M/s. Nisha Oil Udyog is not a registered body and the Petitioner is its sole proprietor. Loan of the Corporation not having been paid in accordance with the agreement, recovery proceedings for recovering the loan as arrears of land revenue were initiated and in pursuance therefore bus number UPO 3327 belonging to the Petitioner was attached by [its actual seizure on 22-8-1990 and it was sold on 6-9-1990 by a public auction to Sri Ghanshyam, Respondent No. 8 for a sum of Rs. 1,75,000/- and this amount having been deposited by the Respondent No. 8, sale was completed and sale certificate was issued in his favour who was also given its possession.

Petitioner had first filed a writ petition No. 21900 of 1990 in the name of M/s. Nisha Oil Udyog through himself as proprietor for a writ in the nature of mandamus commanding the Respondents to supply necessary notices of the outstanding amount and for quashing the entire recovery proceedings. After the bus was auctioned on 6-9-1990 the Petitioner filed another writ petition No. 25120 of 1990 in his own name for quashing of attachment auction sale of the bus in favour of Respondent No. 8. At the admission stage, the Respondents have filed counter-affidavit and the Petitioner filed rejoinder-affidavit in reply thereto We have heard Sri S.K. Verma learned Counsel for the Petitioner and Sri H.R. Mishra learned Counsel for the Corporation and also learned Standing counsel and the writ petition is being disposed of in accordance with Rules of the Court.

Learned Counsel for the Petitioner has challenged the attachment and auction of the bus on the grounds that (i) for recovering the loan of M/s. Nisha Oil Udyog the bus of the Petitioner (Sheo Narain Tiwari) cannot be attached and sold in as much as the aforesaid firm is not its owner and attachment and sale being void ab initio is liable to be set-aside by this Court; (ii) no opportunity of being heard was given to the Petitioner under Order 21 Rule 66 CPC before preparation and publication of sale proclamation.

Section 282 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as Act) provides for attachment and sale of moveable property for realising any amount as arrears of land revenue and its Sub-section (2) lays down that every attachment and ''sale shall be made according to the law in force for time being for attachment and sale of the moveable property in execution of decree of Civil Court. Sub-section (2) of Section 282 of the Act is quoted below:

Every attachment and sale under this section shall be made according to the law in force for the time being for the attachment and sale of moveable property in execution of a decree of a civil court.

Order 21 Rule 43 CPC lays down that moveable property in the possession of the judgment-debtor is to be attached by the actual seizure. Rule 58 of the same Order provides for objection against the attachment of any property, attached in execution of a decree, on the ground that such property is not liable to attachment, and if such objection is made the same is liable to be decided in accordance with provisions contained therein Clause (4) and (5) of this Rule provide for appeal against the adjudication and if objections have been refused to be entertained a provision for suit has been laid down. Rule 66, which deals with proclamation of sale by public auction of the attached property, requires such proclamation to be drawn-up after notices to the decree holder and judgment-debtor. Rule 77 of Order 21 lays down that where moveable property is sold by public auction its price shall be paid at the time of sale or within such time as the officer conducting the sale directs. Clause (2) of this Rule further provides that on payment of purchase money the sale shall become absolute. This clause is quoted below:

On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

Rule 78 declares that no irregularity in publication and conducting the sale of moveable property shall vitiate the sale, but the persons who sustains injury by reasons of such irregularity, have been given liberty to institute suit for compensation. It is thus clear that after moveable property is sold by public auction and its price has been paid by auction-purchaser, the sale becomes absolute and the property stands vested in the purchaser. A Division Bench of this Court in the case of Seth Hira Lal v. State of U.P. 1978 AWC 538 has while considering the provisions of Rule 77 of Order 21 laid down that.

Provisions contained in Rule 77 of the CPC make it amply clear that If the price is paid at the time of sale of after wards with the permission of the officer holding the sale and a receipt is issued to the auction purchaser, the sale shall become absolute. No order of any other authority is necessary for confirming the sale in case of moveable property.

Supreme Court also in the case of Balkrishan Gupta and Others Vs. Swadeshi Polytex Ltd. and Another, has observed that:

On such sale either under Rule 76 or under Rule 77, the purchaser acquires title.

The bus in question was attached on 22-8-1990 by its actual seizure. It was open to the Petitioner to file objection under Order 21 Rule 58 CPC but he did not do so, even though admittedly he had full knowledge of the actual seizure of the bus on the aforesaid date. Sale proclamation was also prepared after observing all the formalities and allegations made by the Petitioner against the sale proclamation have been denied. The Petitioner could have raised objection against sale proclamation also, but he did not do so. Petitioner also did not raise any objection at the time when auction sale was conducted and even thereafter before the officer who conducted the sale. The auction purchaser, Respondent No. 8 deposited the auction money and sale of the bus became absolute in his favour and he became its owner. Not having raised any objection at any stage of the proceedings, it is not open to the Petitioner to challenge the recovery proceedings before this Court for the first time. When law provides forum and the method for redress of the grievance, the affected person concerned should take recourse to these forum and the methods and it is not open to him to bye-pass them and straight away file the writ petition under Article 226 of the Constitution of India. As mentioned herein before the Respondent No. 8 has become absolute owner of the bus after he deposited the auction money and he has also been delivered its possession alongwith sale certificate. We cannot undo the sale under Article 226 of the Constitution of India, thereby depriving the auction purchaser of the right which he acquired lawfully without any objection from the side of the Petitioner. We are as such not inclined to interfere in exercise of power under Article 226 of the Constitution of India.

Even on the merits we do not find any substance in the submission of learned Counsel for the Petitioner. M/s. Nisha Oil Udyog is not registered firm and the Petitioner, Sheo Naraln Tiwari, is its sole proprietor. A firm which is not registered does not have any juristic personality and cannot be said to be different from its proprietor. Such firm is nothing but a name under which its proprietor carries on business. The Petitioner, being its sole proprietor, cannot escape the liability on the ground that he is different from the firm and his property cannot be attached and auctioned.

Learned Counsel for the Petitioner has cited, before us, several decisions In order to demonstrate that the Petitioner can challenge the attachment and sale straight away under Article 226 of the Constitution of India, without taking recourse to remedies provided by the statutes. It cannot be disputed that under Article 226, this Court can interfere at any stage of the proceedings but as mentioned above when law itself provides the forum for redress of the grievances, this Court insist that grievance should at first be raised before the statutory forum. The authorities cited by the learned Counsel for the Petitioner do not help him, in as much as in those cases sales were held to be nullity and/of statutory remedies became barred by time for no fault of the person concerned. In the case of Smt. Shanti Devi v. State of U.P. 1979 RD 203, the Petitioner Smt. Shanti Devi had no knowledge of the attachment and auction sale and she came to know only when she was dispossessed on account of which remedy given under Rule 285-H and 285-I of Z A Rules became barred by time. In these circumstances this Court interfered because no alternative remedy was available to the Petitioner and she was deprived of her right to hold the property under Article 19(1)(f) of the Constitution of India without authority of law as the sale was found to be without jurisdiction. In the case of Khaki Prasad v. Harsinghpur Sadhan Sahkari Samiti 1979 AWC 1 the writ petition was filed after exhausting alternative remedy of appeal against the Arbitration Award under U.P. Cooperative Societies Act. In the case of Ashok Kumar v. State of U.P. 1979 ALJ 203 sale of the property was found to be without jurisdiction and this Court accordingly interferred under Article 226. In the case of Jalaluddin v. State of U.P. 1983 ALJ 437 this Court interfered as the property was attached and sold without giving any notice of demand to the Petitioner, in as much as the service of notice of demand on the defaulter is a condition precedent for attachement and sale of the property.

In the instant case, the Petitioner bad full knowledge and notice of the attachment and auction proceedings and he had full opportunity to raise objection within time under relevant provisions. He not having raised such objection and sale not being without jurisdiction it is not proper for this Court to interfere under Article 226 of the Constitution of India.

Both the writ petitions lack merit and are dismissed with costs.