B M MANJUNATHA GUPTA Vs. M G SFFLVANAGOUDA

JUDGEMENT

(1.) CERTAIN interesting aspects of the law touching the question that often arises before the Courts in relation to situations where an auction sale is questioned and is liable to be set aside have fallen for determination in this civil revision petition. First, the brief facts the petitioner before me is the auction purchaser who had successfully bid for and purchased a property on 3-3-1986 for a sum of Rs. 75,100/- in an auction sale that was conducted in Execution Proceeding No. 275 of 1984. One M. Bhatta had instituted Original Suit No. 71 of 1980 which came to be decreed on 16-4-1983 for a sum of Rs. 19,342. 70 Ps. and it was this decree that was sought to be executed. The property in question was put-up for sale and the present petitioner who is the auction purchaser was the successful bidder. In keeping with the requirements of law, he deposited the first instalment of 25% on that very day and the balance 75% in Court on 17-3-1986. The sale in question was not confirmed for a considerable period of time because the judgment-debtor kept on making applications to the Court requesting for some reasonable time on the assurance that he would deposit the requisite money for satisfaction of the decree in which case the question of confirming the sale may not have arisen. The Court appears to have granted time on numerous dates of hearing and finally on 18-8-1987 the sale in question was confirmed. I need to mention here that the judgment debtor and subsequently his legal representatives carried the matter further in so far as attempts were made to have the sale set aside but those proceedings culminated in Civil Revision Petition No. 5119 of 1987 which was finally disposed of by this Court on 16-11-1989. The confirmation of the auction sale was accordingly confirmed right up to this Court.

(2.) THERE is another off-shoot to that proceeding with which weare here concerned. One Shivanagouda appeared before the executing Court and filed LA. IV on 13-3-1986 and he contended that he is the plaintiff in Original Suit No. 143 of 1983 according to him the judgment-debtor had entered into an agreement to sell the same property to him several years earlier and he had filed the suit for specific performance. The applicant contended that the property that was put-up for sale was the very same property in respect of which he had asked for specific performance and that consequently, the sale should not be confirmed. In other words, what was contended was that the same property was the subject-matter of the legal proceedings namely Original Suit No. 143 of 1983 and that therefore, the executing Court should not confirm the sale. The record indicates that I. A. IV was pending before the executing Court on 18-8-1987 when the Court confirmed the sale. Shivanagouda thereafter took the matter up in revision which was subsequently allowed to be converted into an appeal and he filed the appeal on 21-9-1988 which appeal was finally heard and disposed of on 31st July, 1991 by the learned District Judge at shimoga. Shivanagouda, hereinafter referred to as the 'respondent' had contended that the executing Court was in error in having confirmed the sale during the pendency of his suit and it was further submitted, that the auction sale was liable to be set aside since he had rights in respect of that property which he was entitled to enforce. Effectively, the appeal court in a relatively short order took the view that the confirmation of the sale during the pendency of LA. IV was incorrect and the sale was accordingly set aside and the executing Court was directed to hear the parties on LA. IV and to pass appropriate orders. It is against this order of the appeal court that the present civil revision petition has been preferred. Sri T. S. Ramachandra, learned Counsel representing the petitioner has in the first instance submitted that has client is a total stranger to all the earlier litigations and that he had bid for and purchased the property in question in a validly conducted court auction, that the Court unfortunately on sympathetic grounds did not confirm the auction sale for a very long period of time and that even thereafter, his client has been subjected to years of litigation for no fault of his and will now have to face another round of proceedings because the sale confirmation has been set aside to the prejudice of his client. Among other things, learned Counsel has pointed out that as normally happens, the party who was put in possession of the property has spent huge amounts of money on it and he submitted that it is most unjust particularly after the judgment-debtor's challenge was negatived, that his client has still got to litigate at this late stage. Apart from the aspect of equities and fairness, learned counsel presented a very strong and substantial challenge to the appellate order because he submitted that it is wholly and totally unsustainable in law. His first ground of attack is that the challenge to the auction sale or for that matter to the confirmation of the sale could only have come from the judgment-debtor and that such a challenge did emanate in this case which had failed. He submitted that the present respondent 1 has no locus standi in law to have presented any application to the executing Court and he submitted that had the executing court acted correctly, it ought to have straightaway dismissed the I A. IV presented by respondent 1. Towards this end, learned counsel pointed out to me that the law is very well-settled. He relied on two decisions in A. C. Subba Reddi and Another v vasireddi Jayaramayya and Others and Nasiruddin Haider v hakim Muhammad Tahir and Others , wherein the Courts had occasion to deal with an agreement of sale and to hold that the party in whose favour such an agreement is executed does not derive any rights in respect of the property by virtue of such a transaction. The Supreme Court had occasion to deal with this question in the decision in Babu Lal v M/s. Hazari Lal Kishori lal and Others, wherein it has been unequivocally held that no rights flow from such an agreement. Learned Counsel submitted that if respondent 1 has any independent rights which emanated from the claim presented by him in Original Suit No. 143 of 1983 or for that matter in relation to the decree that wan subsequently passed in that proceeding, that those rights cannot be agitated in the present execution proceedings and moral importantly, to defeat the rights that have arisen in favour of the petitioner. The position in law is quite clear and to my mind, there can be no ambiguity about the fact that the present respondent 1 was totally precluded from even presenting any application to the executing Court for purposes of either setting aside the auction sale or objecting to its confirmation in so far as he had no locus standi whatsoever to do so.

(3.) I need to record here that the learned Counsel who represented the first respondent tried to sustain the action by pointing out that it was in respect of this very property that his client was agitating his rights. To my mind, that does not make the least difference because we are here concerned with the question as to whether the first respondent was possessed of any legal rights in respect of that property as on the date when he presented the application I A. IV to the executing Court which was on 13-3-1986. On that date, he was in possession of an agreement of sale in his favour and he had moved the Court for enforcement of that agreement. Neither of these two circumstances would invest him with the locus to present this application. It is in these circumstances that the objection presented by the petitioner's learned Counsel will have to be upheld.