CHANDRABHAN SINGH Vs. PURAN CHAND

JUDGEMENT

(1.) THIS is an execution second appeal by the decree-holder. The judgment-debtor is the respondent. In execution of the decree in suit No. 108/58 of the Court of Munsif, Lalitpur, (Execution Case No. 197 of 1964) the judgment debtor's house was attached and was thereafter sold on the 8th November, 1965. The sale was confirmed on 11th December, 1955 as no application to set it aside, under Rules 89, 90 or 91 of Order XXI of the Code of Civil Procedure, was filed within the limitation prescribed by law. The judgment debtor, however, appears to have moved an application, dated 23rd December, 1965 headed as an objection under Order XXI, Rule 89, Section 47 and Section 151 of the Code of Civil Procedure. The application was dismissed by the learned Munsif by an order dated 28th May, 1966, in the absence of the judgment-debtor-applicant, after rejecting his application for adjournment. The grounds on which the application was rejected, were that it was absolutely misconceived and not covered by any of the provisions mentioned therein ; that the objection should have been filed within 30 days of the sale and the sale having been confirmed on 11th December, 1965, remedy did not lie by way of that application. The learned Munsif also found that the application was not covered by Section 47 of the Code of Civil Procedure and there was no question of invoking the inherent jurisdiction of the Court. The application was accordingly dismissed on this ground also. On appeal, the Court of the Additional Civil Judge Jhansi set aside the order of the learned Munsif, and the sale and ordered the execution to proceed. The learned Additional Civil Judge held the sale to be void ab initio on the ground that 1/4th of the bid was not deposited by the decree-holder auction- purchaser immediately on his being declared the highest bidder, and the Amin Exceeded, his authority in accepting a receipt from the decree-holder for adjusting the amount against the decree, instead of forthwith re selling the property ; and further that the learned Munsif also exceeded his jurisdiction in permitting the decree holder by his order dated 17th November, 1965 to deposit the purchase money within ten days. According to the learned Additional Civil Judge the learned Munsif could not have extended the time for deposit beyond 15 days from the date of sale and therefore, the deposit made by the decree-holder on 26th November, 1965 was illegal. The learned Additional Civil Judge has also observed that although the learned Munsif had granted the judgment-debtor time on the 11th December, 1965 to bring a stay order within ten days, jet he confirmed the sale the very same day on the 11th December, 1965 which showed that the learned Munsif was annoyed by the transfer application made by the judgment-debtor. Mr. M. P. Singh learned counsel for the decree-holder appellant has urged that the sale could not have been set aside except on an application made under either of the Rules 89, 90 or 91 of Order XXI of the Code of Civil Procedure, within 30 days from the date of the sale, and not at all, after it had been confirmed on 11th December, 1965 in the absence of any such application having been made within time. He relied on the case of Janak Raj v. Gurdial Singh and another A.I.R. 1947 S.C. 608, and urged that the sale had to be con firmed if such an application was not made within time, notwithstanding even subsequent setting aside of the decree in execution of which the sale had been held. It cannot be disputed that if a sale of immovable property is validly held in execution of decree, it cannot be set aside except on an application made under either of the Rr. 89 or 91 of Order XXI of the Code of Civil Procedure. However, the learned Additional Civil Judge has held that the sale was void ab initio. Mr. M. P. Singh contended that the learned Civil Judge was in error in directing the sale to be void ab initio. A decree-holder may, with the permission of the Court, have an auction sale held in execution of his decree, and in such a situation where he is the purchaser and is entitled to set off the purchase money under Rule 72, the Court may dispense with the requirements of Clause (t) of Rule 84, under Clause (2), thereof. It does appear that the learned Additional Civil Judge overlooked this aspect of the matter when he found that the Amin had no authority to accept a receipt from the decree-holder setting off the amount against the decree, and when he held that the learned Munsif exceeded his jurisdiction in granting time to the decree-holder to deposit the purchase money. Be that as it may, it cannot be said that the sale was void on that account. The four days delay in depositing the purchase money by the decree-holder, with the sanction of the Court may have been irregular but the irregularity cannot be said to have been material, and at any rate not such as to have vitiated the same. Even so that sale could not be held to be void ab initio, such as to be declared to be a nullity on an objection under Section 47 of the Code of Civil Procedure. It could only be set aside on a proper application made under Rule 90 and that too if the conditions of that rule were satisfied. The application made by the judgment-debtor in the present case made no reference to Rule 90 at all ; it was headed as one under Rule 89, along with the other provisions of the Code of Civil Procedure. I am, therefore, of the opinion, that the lower appellate Court was in error in setting aside the sale. In the result the appeal succeeds and is allowed with costs. The judgment of the lower appellate Court is set aside and that of executing Court is restored with costs throughout.