SUSHILA Vs. SANTOSH WIDOW AND OTHERS

JUDGEMENT

(1.) The revision is against the order rejecting an application filed by a third party to set aside a sale that was held on 17.10.2008. The sale had been in execution of an award passed by the Motor Accident Claims Tribunal for realization of the amount determined as compensation payable to the claimant. The application was filed by the present petitioner by way of objections stating that he has himself purchased the property and he was interested in having the sale set aside by depositing 5% of the purchase money and the amount mentioned in the proclamation of sale. In proof of the deposit, the petitioner had also filed copies of challans. The objection by way of petition came to be filed on 17.12.2008 i.e. on the last day of the limitation. The Court rejected this objection on the ground that the judgment debtor had at all times known about the attachment and execution furnished for sale and after the sale that was held on 17.10.2008, the Executing Court had confirmed the sale on 13.10.2008 and the excess sale proceeds had also been withdrawn by the judgment debtor. Consequently, the Court held that the petitioner, who claimed to be a purchaser of the property from the judgment debtor had purchased it when the execution petition was also pending and therefore, his petition cannot be entertained.

(2.) I find that the Executing Court had completely misdirected itself to issues which were not relevant. When the petitioner had deposited the amount specified in the sale proclamation and was also adding up 5% of the amount specified as solatium then the Court should have considered the grounds for setting aside as a petition filed under Order 21 Rule 89 CPC. It was immaterial that the provision of law had not been cited in the objection, for it is clear from the averments in the objection that the deposit had been made and referred to in his objection that he was seeking to set aside the sale only as a person, who had actually purchased the property and as a person interested in the property, he had deposited the money which was the amount specified in the sale proclamation and the solatium as mentioned under Order 21 Rule 89 CPC. When such an application was filed, all that the Court would be required to see is not whether there was any bona fide in his purchase. The bona fide is not an issue for an adjudication under Order 21 Rule 89. Nor is it even necessary for Court to consider whether he knew about the sale proceedings or not. A person making such an application could be a purchaser pending suit as well, for all that the petition requires is that the person making deposit must be a person claiming an interest in the property sold at the time of sale or at the time of making the application or he shall be acting for or in the interest of such person. If the petitioner was, therefore, claiming an interest in the property as a purchaser of the very same property on 23.05.2005 and 30.07.2007, he shall be taken to be a person who was interested in the property and therefore, his locus standi was properly established.

(3.) The Court has been led to pass a wrong order only by having followed a wrong procedure even in relation to confirmation of sale. The Court had no power to confirm the sale for an auction held on 17.10.2008 before the completion of 60 days. Order 21 Rule 92 CPC sets out the time when a sale shall be made absolute. A sale shall be made absolute if the sale was not set aside in a manner under Order 21 Rule 89 or 90 CPC. A limitation for setting aside a sale under Order 21 Rule 89 or 90 is 60 days in terms of Article 127. When the sale had taken place on 17.10.2008, the Court had no power to direct confirmation of sale on any day before 17.12.2008. By allowing for confirmation of sale on 13.12.2008, it was following a procedure which the law did not allow. No act of Court can prejudice a party and therefore, it should be understood that if the Court was confirming the sale on 13.12.2008 that is before 60 days, it cannot defeat the right of either the judgment debtor or any person claiming an interest in the property to have it set aside. The Court was bound to receive the money and was bound to set aside the sale.