Ajay Kumar v. Indradeo Lal

Judgment

1. 2. 3. 4. Mohalla- Purani Bazar, Sohsarai, P.S. Sohsarai, District- Nalanda M/s Bishwakarma Cold Storage (Private) Limited Sohsarai, P.S. Sohsarai, District- Nalanda, Managing Director of Dwarika Prasad .... .... Appellant/s Versus Indradeo Lal son of Maksundan Ram, resident of Mohalla- Sohsarai, P.S. Sohsarai, District- Nalanda State Bank of India Bazar Branch, Biharsharif through Manager Bihar Sharif Om Prakash Gupta Ashok Kumar Guplta, both sons of Late Ramu Sah, residents of Mohalla Sohsarai, P.S.- Sohsarai, District- Nalanda .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. S. S. Dwivedi, Sr. Advocate with Mr. Mallika Mazumdar Mr. Bishwanath Choudhary Mr.

Sanjeev Kumar Mishra Mr. Vijay Kumar Mr. Ranjan Kumar Dubey Mr. R.S.Dwivedi Mr. Sangeeta Sharma, Advocates For the Respondent/s : Mr. Rajendra Narain, Sr. Advocate with Mr. Shiva Nand Pathak Mr. Anju Narain Mr. Raj Kishore Sinha Mr. Vikash Sinha Mr. Hans Raj, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA C.A.V. ORDER 21 29-01-2013 The present appeal is directed against the order dated 21st September, 2000 passed by 1st Sub-ordinate Judge, Nalanda at Biharsharif on an application under Order 21 Rule 90 of the Code of Civil Procedure (hereinafter referred to as the ’Code’) filed by the judgement debtor-

Patna High Court MA No.574 of 2000 (21)

2. appellant registered as Misc. Case No. 25 of 1990/1 of 1994 in Execution Case No. 11 of 1989 whereby the aforesaid application for setting aside the auction sale after issuance of sale certificate was dismissed. The short relevant facts are that the respondent- Bank for realization of its outstanding loan dues against the appellant filed Title (Mortgage) Suit No. 117 of 1981 in the Court of 1st Sub-ordinate Judge, Nalanda at Biharsharif. The suit on contest was decreed on 30.09.1988; final decree was passed on 09.06.1989. The decree holder levied execution case on 28th August, 1989. January, 1989 and execution case in question was filed on 28th August, 1989. The mortgaged property for repayment of loan dues was attached and notice of such attachment was issued mentioning the decreetal dues and the details of the properties attached and subsequently sale proclamation issued, notice of which were complied with. The Judgement debtor having failed to appear and pay the decreetal amount nor filed any objection. The mortgaged property was auction sold on 14th June, 1990 and having no objection the sale was confirmed by order dated 16th July, 1990 sale certificate granted on 16.08.1990 in favour of the respondent-auction purchaser. The court by order dated 13.11.1990 directed for delivery of possession. After completion of all the above processes the appellant on 20th November, 1990 filed the Patna High Court MA No.574 of 2000 (21)

3. aforementioned application under Order 21 Rule 90 of the Code registered as Misc. Case No. 25 of 1990 to set aside the aforesaid auction sale on the ground that the judgement debtor had no notice of the proceedings and the plot numbers mentioned the attachment and proclamation differs, the value of the property mentioned in the said proclamation was inadequate no enquiry made by the court to ascertain the adequacy of the property necessary to be sold to satisfy the decree and as such the auction sale deserves to be set aside on the ground of material irregularity and fraud. The aforesaid miscellaneous case was contested. The appellant (judgement debtor) as also the auction purchaser adduced oral as well as documentary evidence in support of their respective cases. The Court below by a detailed analysis of the evidence oral and documentary adduced by the parties did not find any material irregularity or fraud in conduction of the auction sale, and as such, dismissed the aforesaid miscellaneous case by the order under appeal. Mr. Shashi Shekhar Dwivedi, learned Senior Counsel appearing for the appellant submits that the auction sale ought to have been set aside primarily on the ground of material irregularity/fraud in publishing or conducting the sale since the plot number mentioned in the attachment of the property in question did not tally with the Patna High Court MA No.574 of 2000 (21)

4. plot number mentioned in the sale proclamation. The value of the property mentioned in the sale proclamation also did not reflect the true value of the property, the judgement debtor had no notice of the proceedings of attachment and sale of the auctioned property. Even if service of notice of sale proclamation is accepted, the attachment was not of the plot which sold. The Court ought to have enquired with respect to the correct value of the property to be sold and adequacy of the area required to be sold to satisfy the decree. Moreover, the Reserve Bank of India under government policy provided the outstanding loan dues to the Bank, as such, nothing remained to be realized from the loanee. It was further contended that the appellant, as such, filed the application under order 21 Rule 90 to set aside the sale on coming to know about the execution case and the auction sale. Learned counsel appearing for the respondent- Bank as also the auction purchaser supports the order under appeal. Mr. Rajendra Narain, learned Senior Counsel appearing for the auction purchaser submits that admittedly the execution case was filed within two years of passing of the decree in the suit in question, and as such, in law it was not necessary to issue any notice of the execution case to the judgement debtor, as a matter of fact, the judgement debtor had full knowledge of the day to day proceeding of the Patna High Court MA No.574 of 2000 (21)

5. execution case which was filed shortly after passing of the decree in the suit which was hotly contested by the appellant-(judgement debtor). It is further submitted that all material particulars sufficient to identify the property attached with respect to which the sale proclamation was issued. Notice of the same was duly effected on the spot and other relevant places including the Court and the office of the Collector as well as the adjacent areas to the mortgaged property. It is further submitted that there were adequate evidence on the record about notice of the sale proclamation on the property proposed to be sold by the beat of drum and other required process in law and on such notice several persons of adjacent places including the appellant (judgement debtor) also who resided nearby the auctioned property came on the spot. Learned counsel further submits that the Court below considered the oral as well as the documentary evidence produced on behalf of both the parties on the question of value of the property i.e. an old structure of cold storage in dilapidated condition closed for last more than 17 years. The Court did not find that the value given in the sale proclamation or the purchase value of the auctioned property was inadequate. Learned counsel submits that the property was auction sold at a price of Rs. 1,35,000/- whereas the decreetal amount was more than rupees seven lakhs. Despite many of the people even after knowing about Patna High Court MA No.574 of 2000 (21)

6. the proposed sale they did not turn up. As such, inspite of the sale of the entire mortgaged property through the auction sale in question, a sufficient portion of decree remained to be satisfied. Notwithstanding the above, it is submitted that the judgement debtor failed to establish or the material irregularity/fraud in conduct of publishing the sale nor pleaded or proved the substantial injury sustained by the judgement debtor. Apart from the above, it was vehemently submitted that the application admittedly was filed after expiry of the limitation period of 60 days as prescribed under Article 127 of the Limitation Act nor deposited the amount equivalent to 12.5% of the decreetal amount in order to maintain the application under Order 21 Rule 90 of the Code. As such, the application itself ought to have been rejected at the threshold without going into the merits of the application. Upon considering the rival submissions of the parties on merits, it appears that the controversy is with respect to the notice of the proceeding of execution case as also the notice preceding the auction sale to the judgement debtor and secondly as to whether the auction sale of the property for a sum of Rs. 1,35,000/- was justified. Since the execution case was filed within two years of the date of decree in the contested suit, notice of the execution petition was not the requirement of law. On perusal of the record, it Patna High Court MA No.574 of 2000 (21)

7. would appear that with respect to the value of property the sale deeds (Exhibits 3 and 4) filed on behalf of the judgement debtor. The land under above sale deeds were found to be situated quite far away from the property sought to be auctioned which was near the river side whereas the sale deeds (Exhibit- G series) produced by the auction purchaser was nearer to the property. As such, the sale deeds produced on behalf of the judgement debtor was found to be not relevant for the purpose of valuation. Besides the above, the Court also took into consideration the balance sheet (Exhibit-H/1) filed by the judgement debtor before the Company Board under the Companies Act as of the year 1967 the value of the property in question was below ninety thousand rupees. The same property was purchased by the judgement debtor long ago in the year 1957 from the family of the promoters of the company. The Court accordingly did not accept the case of the judgement debtor that the property sold was undervalued or it was a family property. As regards the notice on consideration of the evidence of Mangal Residas, opposite party witness no. 2, the Drum Beater, who had gone to the spot for service of notice of the sale proclamation by beat of drum along with other officials of the Court, who was also deposed as witness. They all have deposed that several persons on such beat of drum came to the spot including the judgement debtor and learnt about Patna High Court MA No.574 of 2000 (21)

8. the proposed auction sale. As such the plea of absence of notice was equally not accepted. Moreover appellant did not adduce any evidence to prove that notice was not properly served. On perusal of the attachment of property as also the sale proclamation vide Exhibit-A and B respectively, it would appear that all material particulars sufficient to identify the land with boundary was sufficient There were some mistake in plot number in the attachment which got corrected in the sale proclamation after attached notice was published in the daily newspaper namely, Rashtriya Dhan on 02.05.1990 vide Exhibit J on the evidence of O.P.W No. 10. Moreover, mere absence of or defect in, attachment of the property sold, shall not by itself a ground for setting aside the sale under the provisions of Order 21 Rule 90 of the Code vide explanation to Sub-rule 2 of Rule 90. Further, the judgement debtor failed to demonstrate material irregularity in publishing or conducting the sale and also failed to prove the substantial injury sustained by him on account of such sale besides the judgement debtor filed the application to set aside the sale long after expiry of the period prescribed for filing such application which is sixty days from the date of sale under Article 127 of the Limitation Act and it is well settled that provisions of section 5 of the Limitation Act is not available for condoning the delay in making such application nor in fact any such application was filed. The Patna High Court MA No.574 of 2000 (21)

9. judgement debtor could not refute the evidence on the record that he was present while the notice of sale proclamation was served on the spot as per the evidence of opposite party witness. The appellant also could not substantiate with acceptable evidence that he could learn about proceedings only through one Umesh Singh of Rajgir although the said Umesh Singh in his affidavit filed in the Court below categorically stated that he did not inform anything to the judgement debtor with respect to execution case or the auction sale, and as such, the only source of knowledge claimed by the judgement debtor through Umesh Singh failed. Accordingly, the application under Order 21 Rule 90 of the Code was hopelessly time barred. Notwithstanding the above, the appellant failed to prove the facts to demonstrate that he sustained substantial injury on account of material irregularity or fraud. Unless it is proved no sale can be set aside a pre-requisite under order 21 Rule 90(2) of the Code. This apart, learned counsel for the appellant could not say anything with respect to the requirement of law whereby the amount to the tune of 12.5 % of the decreetal amount was required to be deposited in order to maintain the application under Order 21 Rule 90 of the Code to set aside the auction sale. It is also worth taking note that under the provisions of Order 43 Rule 1 of the Code, no appeal is permissible against the order passed on Patna High Court MA No.574 of 2000 (21)

10. an application under Order 21 Rule 90 of the Code to set aside the auction sale on the ground of material irregularity or fraud. In the result, for the reasons and discussions made above, I do not find any worth ground to interfere with the findings of the Court below while dismissing the application under Order 21 Rule 90 of the Code filed by the judgement debtor. Accordingly, this appeal being devoid of any merit is dismissed with cost of Rs. 5,000/-(rupees five thousand). Manish/- (Shailesh Kumar Sinha, J)