Mukesh Maheshwari Vs United Western Bank Ltd. and Others

@JUDGMENTTAG-ORDER

K.K. Trivedi, J.@mdashThis Revision is directed against the order dated 19-7-2006 passed in Execution Case No. 7B-2001 by Second Additional District Judge, Burhanpur (M.P.) rejecting the application/objection raised by the judgment debtor, the petitioner herein with respect to the confirmation of auction and issuance of sale certificate. The facts giving rise to filing of this Revision are that the respondent No. 1/bank has instituted a suit for recovery of certain loan amount from the father of the petitioner Shri Narayan Das Maheshwari. The suit was decreed and the execution proceedings were initiated. The Executing Court while passing an order on 19-2-2002 attached the suit property and put the same for auction on 8-8-2002. The auction was held in favour of the respondent No. 10 for an amount of Rs. 75,000/-. In terms of the auction, the said auction purchaser was required to deposit 25% of the auction sale amount immediately and was required to deposit the rest of the amount within 15 days. However, the said amount was not deposited. An objection was filed by the father of the petitioner on 22-10-2002 for setting aside the said auction dated 8-8-2002 on the ground that the compliance of the provisions of Order 21, Rule 85, CPC in full was not done and the full amount of consideration of the auction sale was not deposited by the respondent No. 10, therefore, the said proceedings were liable to be set aside. The auction sale was liable to be set aside. During the pendency of such proceedings, the original judgment debtor died and was substituted by the petitioner and other family member. However, since such an objection has been rejected, the present Revision has been filed.

2. It is contended by learned counsel appearing for the petitioner that the mandatory provisions of CPC are required to be seen. If the amount of auction sale is not deposited within the stipulated period, the auction is not to be confirmed. That being so, it was to be seen by the executing Court that the amount was deposited on 7-3-2006 and that being in violation of the statutory provision, the auction sale had become void and was not to be confirmed. However, this particular aspect is ignored on the ground that the matter on an application made by the petitioner or original judgment debtor was being contested and thereafter the same was transferred on account of transfer of the Presiding Officer of the Court, from one Court to another and during this period ultimately the deposit was made. Thus, it was found that no irregularity was committed in making the deposit. It is contended that in terms of the provisions of the Code, the deposit was must within the time which was not done and accordingly the auction sale cannot be confirmed. However, since this particular aspect is totally ignored, the order impugned is bad in law and is liable to be set aside.

3. Per contra, it is contended by learned counsel appearing for the respondent No. 10 that the auction sale was rightly held, the bid of respondent No. 10 was accepted, the deposit in terms of the orders of the Court was made and for the lapses on the part of the petitioner or the original judgment debtor, the respondent No. 10 was not to be denied the benefit of title over the property purchased in auction. This being the situation the Court below was right in rejecting the objection of the petitioner and no illegality whatsoever has been committed in passing the order impugned. Thus, it is contended that in view of the settled law, the objection raised by the petitioner was not to be entertained and since there is no jurisdictional error committed by the Court below, the Revision itself is liable to be dismissed.

4. Heard learned counsel for parties at length and perused the record.

5. Order 21, Rules 84 and 85 of CPC prescribe the procedure for deposit by purchaser of auction sale amount and on failure resale of the immovable property attached and sold in auction for execution of any money decree. Order 21, Rule 84, CPC deals with the deposit by purchaser and resale on default and it is clearly prescribes that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration twenty five per cent of sale amount to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold. Similarly the provisions of Order 21, Rule 85, of CPC prescribe the time for payment of full purchase money. It is categorically provided that the full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the date of sale of the property.

6. A plain and simple reading of the aforesaid provisions makes it clear that there are two conditions precedent for confirmation of the sale one is deposit of twenty five percent amount of auction sale on the date when the auction is held in favour of any such purchaser. The other condition for confirmation of the auction sale is payment of the rest of the amount or better to say the full of the amount of auction sale within fifteenth day, before closer of the Court, in the Court by the auction purchaser. Though the word "Court" is not defined in the Code itself but the plain and simple meaning of word "Court" as can be understood means any Court established within the District which is to be treated as a Principal Civil Court of original jurisdiction within the said district. The jurisdiction of the Courts are decided according to the provisions made in the Civil Procedure Code. If the Presiding Judge in one of the Court which was executing the decree and under which direction auction was held was not available at the relevant time, could it be said that deposit was not to be made by auction purchaser within the time stipulated under the provisions of Order 21, Rule 85 of Civil Procedure Code.

7. It is not disputed that auction was held on 8-8-2002. It is clear that twenty five percent deposit was to be made on that day. The auction was held for an amount of Rs. 75,000/- (seventy five thousand). The remaining amount was to be deposited within fifteen days that is by 23rd August, 2002, so that, the auction could be confirmed. Since this was not done, the objection was raised by the father of the petitioner on 22-10-2002. By that time the deposit was not made. The consequence of non deposit of the amount would be nothing except setting aside the sale. The law in this respect has been considered by the Apex Court in the case of Usmansab Hatel Sahab Vs. R.L. Meharwade and Others, and it has categorically been held that in case there is failure on the part of the auction purchaser to pay the amount of auction sale within fifteen days as required by Order 21, Rule 85 of Civil Procedure Code, the auction sale is liable to be set aside under Order 21, Rule 86 of Civil Procedure Code. It is also held by the Apex Court that in such case there cannot be any direction to compensate the auction purchaser. From the facts as have come on record it is clear that the deposit of auction amount was not made within time. The objection to that effect was raised immediately on 22-10-2002. If the said objection was contested by the decree holder and it was said that the delayed deposit will not completely made the auction as null and void and that matter was contested for a long period, how could it be said that default was not there and auction sale was not to be set aside. What was required to be seen whether there was full compliance of the provisions of the Order 21, Rule 85, CPC or not.

8. The word which is used in the said prevision makes it clear that the said provision is mandatory in nature as the word "shall" has been used by the legislature. If the decree holder was raising any objection with that respect, it was meaningless. It is not satisfaction of the decree holder but it is the satisfaction of the law and the Court that such an objection is required to be considered. In the given circumstances when it is found that the amount was not deposited, as per the provisions of the Code, the Court below was required to cancel the auction held in favour of the respondent No. 10 and to put the property for re-auction or to accept any other offer extended by the judgment debtor to satisfy the judgment and decree granted by the Court. The another aspect is required to be examined. The Division Bench of this Court in Writ Appeal No. 1314/2006 has considered the aspect of application of provision of Order 21, Rules 85 and 86 of CPC with respect to the auction held by the DRT. The similar provisions are applicable with respect to confirming the auction sale and interpreting the law laid down by the Apex Court in this respect, the Division Bench of this Court has categorically held that the prescription of deposit of the balance amount of 75% of the purchase money was mandatory and the consequence of non deposit of such balance amount during the fixed period was infact violative of the peremptory provision of the Code and thus there was no question of relaxation to be extended to such a defaulter.

9. It is contended by learned counsel for the respondent No. 10 that merely because the deposit was made at a belated stage, of course because of certain pending proceedings on account of filing of objection by the petitioner, it cannot be said that the respondent No. 10 was a defaulter. For the said purposes, reliance is placed in the case of Bijoy Singh Vs. Raja Kirtyanand Singh and Others, and in the case of Bharat Singh and Others Vs. Ram Prasad, . The facts and circumstances of each case are required to be examined. In the present case it was nowhere pointed out that the amount was ready with the respondent No. 10 for deposit, he was ever since willing to deposit the amount in the Court but for some reasons beyond the control of the respondent No. 10 the said deposit could not be made within time. On the other hand from the order it appears that since the objection filed by the petitioner was being contested by the decree holder only, the deposit was not made by the respondent No. 10. In such a case if the respondent No. 10 was ready and willing to deposit the amount, he could have obtained sanction from the Court even before other Court where the urgent work of the concerning executing Court was required to be sent, in case of non-availability of the Presiding Officer of the executing Court and the deposit could have been made in the CCD. The deposit was not to be made directly to the bank, on the other hand it was to be deposited in the Court and said amount was to be paid to the bank, the decree holder by the Court, therefore, there was nothing available on record before the Court below to indicate that the procedure laid down under Order 21, Rule 86 of CPC was not to be resorted to. The said provision is very clear where it is said that if the amount has not been deposited within the time the Court not only can cancel auction sale but can also forfeit the claim to the property or any part of the same and the money paid for said purposes can be deposited with the Government, Thus, in the considered opinion of this Court, such a procedure was not rightly followed by the Court below.

10. In view of the aforesaid, as also in view of the law laid down by the Apex Court in the case of Balram Vs. Ilam Singh and others, , no escape was available to the Court below except to set aside the auction sale and to take further action for recovery of the decretal amount from the petitioner. In view of the aforesaid, the order impugned cannot be sustained. The Revision deserves to be and is hereby allowed. The order dated 19-7-2006 passed in Execution Case No. 7-B/2001 by the Second Additional District Judge, Burhanpur is hereby set aside. The auction sale held on 8-8-2002 in favour of the respondent No. 10 is hereby set aside. However, if the petitioner is so willing, he may deposit the decretal amount in the executing Court. If the decree is already satisfied in favour of the respondent No. 1 the amount deposited by petitioner, would be payable to the respondent No. 10 as refund of the amount deposited by him. In such circumstances, the property put in auction to be restored in favour of the petitioner. There shall be no order as to costs.