Siri Bhan vs Jit Singh and Another

Chopra, J.—This appeal is directed against an order of District Judge, Bhatinda setting aside an order of the executing court dismissing judgment-debtors'' objections to an execution sale.

In execution of his money decree Bhan Appellant got agricultural land of Jit Singh and Gian Singh Respondents the judgment-debtors, attached and sold in his favour. The sale was confirmed on 9-10-1953. On 10-12-1954, the judgment-debtors brought an application under Sections 47 and 151, Code of Civil Procedure, for setting aside the sale on a number of grounds. One of them was that the auction-purchaser did not deposit one-fourth of the sale price immediately and the remaining three-fourth within the prescribed period'' of fifteen days after the sale.

The application was resisted by the decree-holder and it gave rise to as many as fifteen issues. The first of these was, "Does this application lie and can it be heard and decided by this Court?" The executing court, without going into the rest of the issues, decided the issue against the judgment-debtors and dismissed the application.

Learned Sub-Judge held the view that after sale was confirmed the executing court be-came functus officio to go into any illegality or regularity in the conduct of the sale. Judgment-debtors'' appeal against this order was accepted by the District Judge and the case remand-to the executing court for decision of the other issues .

I have no hesitation to agree with Shri D.S Nehra, learned Counsel for the Appellant of the objections taken by the judgment-debtors way possibly relate to the conduct of the sale and therefore they are such as could not be raised by the judgment-debtors after confirmation of the sale. But so far as the objection regarding the failure to comply with the provisions of Order 21, Rules 84 and 85, Code of Civil Procedure, is concerned, I do not think it related merely to an irregularity in the sale or that it could only be raised under Order 21, Rule 90, Code of Civil Procedure, before the sale was confirmed.

It has now been finally laid down by their Lordships of the Supreme Court in Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, that the provisions of Order 21, Rules 84, 85 and 86, Code of Civil Procedure, requiring the deposit of 25 per cent, of the purchase-money immediately and the payment of the balance within fifteen days of the sale, are mandatory and that upon non-compliance with these provisions there is no sale at all.

Rules 85 and 85 of Order 21 required that the property shall be resold on default by the person to deposit- 25 per cent, immediately when he is declared to be purchaser and'' the balance within fifteen days of the sale. No discretion in the matter is left with the court. The very fact that the court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. The sale ought to be regarded as having never taken place so as to pass any title to the purchaser.

When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. When the sale from its very inception is a nullity and'' it ought to be regarded to have never taken place, there remains nothing to be confirmed. Subsequent order of its confirmation cannot give life to or validate a transaction that never existed in the eye of law or was ab initio void.

The fact that the objection is raised and the illegality brought to the notice of the court after the sale has been-confirmed will not, therefore,-create any difference. The sale being ab Initio void, it could altogether be ignored and'' no effect could be given to it. The matter surely relates to execution, discharge or satisfaction of the decree and can, therefore, be gone into and decided by the executing court.

In ''Kabul Chand v. Ram Parshad'' AIR 1951 Pepsu 163 (AIR v. 38) (B), the facts were very much different. The sale was sought to be set aside on the ground that the decree in the execution of which the sale took place had been reversed. The application was presented beyond time and after the sale had been confirmed. The auction-purchaser was not the decree-holder himself but a stranger. Mr. Nehra particularly relies upon the following observation made by the learned Judge:

The share of the J.D. in the shop having been sold on 27-8-2002 and the sale confirmed on 28-9-2002, the executing court had become functus officio so far as the satisfaction of the decree was concerned. The sale had become absolute and could not be reversed merely because there were certain glaring irregularities in the conduct of the sale or with regard to the deposit of the purchase as contemplated by Order 21, Rule 84, Code of Civil Procedure.

After the sale had been confirmed the executing court ceased to exercise Jurisdiction in the application ''.-and the title with regard to the property sold had passed on to the auction-purchaser who is a stranger and is neither a representative of the D.H. nor of the J.D.:

The principle laid down is rather too broadly worded. In any case, reference to "the deposit of the purchase ''''money as contemplated! by Order 21, Rule 84, Code of Civil Procedure." is in the nature of an obiter dictum. Question'' regarding effect of non-compliance of Rule 84-of Order 21, Code of Civil Procedure, was not directly involved in the case,

In the second case relied upon by Mr. Nehra Niranjan Mai v. Asa Ram'' AIR 1953 Pepsu 515 (AIR v. 40)(C), the main question before the Division Bench was whether a separate suit to sets aside a sale was competent. Without going into the question whether or not the objections were covered by Section 47, CPC it was held that the suit was shared under Sub-Rule. (3) of Order 21, Rule 92 Code of Civil Procedure

The learned Judges seem to have favoured the view that the auction-purchaser''s failure to make the deposit within the time allowed by Rule 85 amounts thereby to an irregularity and that the only course open to the Judgment-debtor is to raise-''the question by an application under Order 21 Rule 90. Code of Civil Procedure. This is directly involved in the above noted case.

In Firm Madho Ram Navrata Ram v. Dwarka DASS AIR 1952 Pepsu 128 (AIRV 39) (D), I had the occasion to deal with a somewhat similar point. The decree-holder purchaser, who failed to deposit the purchase-money within the prescribed period, was allowed to do it after the time had expired. The sale was set aside by the executing court on an objection by the judgment-debtor. Decree-holder''s petition for revision against this order was dismissed with the observation that

the provisions of Order 21, Rule 85, Code of Civil Procedure, are precise and mandatory, and no option is left to the Court to condone a non-compliance with them; the Court might only have a discretion with respect to the forfeiture of the amount deposited by:the auction-purchaser, but no such discretion is left to the "court in the matter of resale of the property.

It was further observed that on the default of the auction-purchaser to pay the balance of the j purchase-money within fifteen days of the sale, the sale was automatically cancelled and the auction-purchaser forfeited all claims to the property.

Whatever might have been my own-view, in the absence of the pronouncement of their Lordships of the Supreme Court, which is to be the law for the land, I would have been bound to follow the view taken by the Division Bench of this Court. The sale in such a case being a nullity and one that ought to be regarded as never having taken place, objection with respect to it may be raised by the judgment-debtor even after the sale is confirmed.

The executing court should not have decided issue No. 1 without going into the rest of '' the issues. The court ought to have taken every objection individually and determined whether it Related merely to an irregularity in the conduct 2 of the sale and whether it could be raised after the sale was confirmed. For the purposes of this appeal I have had to assume that the allegation with respect to non-observance of the allegation of Order 21, Rules 84 and 85, CPC is correct.

I should not, therefore, be taken to hold that the sale was in fact a nullity. That has to be determined by the executing court while deciding the particular issue on the point. To be more precise, the executing court shall decide whether in this particular case the provisions of Order21, Rules 84 and 85, CPC were or were not complied with.

In the result, this appeal is dismissed. No order as to costs. The parties are directed, through their counsel, to appear before the Sub-Judge, Mansa, on 23-3-1956.