Dismissed

K. Neelavathi v. J. Maheshwari

Andhra Pradesh HC8 Dec 2022CRP/3564/2018

Case brief

AI extract

What is this about?

Civil revision petition challenging an order setting aside an alleged property sale due to discrepancies in the execution docket and failure to record the auction. The High Court held that without conclusive proof of sale and compliance with procedural mandates, the execution court correctly directed a fresh auction despite the decree holder's partial payment.

What did the court decide?

The Civil Revision Petition was dismissed. The execution court's order setting aside the sale and directing a fresh proclamation and sale was upheld.

K. Neelavathi Vs J. Maheshwari — Execution and Attachment | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.3564 of 2018

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ORDER:

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This Civil Revision Petition is filed under Section 227 of the Constitution of India against the order dated 04.04.2018 in E.P.No.87 of 2009 in O.S.No.205 of 2006 on the file of the Court of the I Additional Junior Civil Judge, Chittoor by which the execution court set aside the sale allegedly conducted on 17.06.2013.

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E.P.No.87 of 2009 is filed for realization of the decretal amount of Rs.62,361/- with subsequent interest @ 6% per annum on Rs.30,000/- by sale of the property mentioned in the schedule annexed to the petition. On 27.07.2017 DHr filed a memo along with calculation of the balance amount to be paid after conducting the amount due under the decree from the total sale consideration amount as per the price of sale allegedly took place in the auction conducted on 17.06.2013 and asked the trial Court to set off the amount of 3/4^th of the sale price and permit the DHr to pay balance of Rs.3,569/- by showing the calculation as follows:

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Total sale price	Rs.1,05,500-00
1/4^thamount of sale price was deposited in Bank on 18.06.2013	(-) 26,375-00 --------------------
Balance amount to be paid by the decree
Holder cum auction purchaser	79,125-00
E.P.amount due	(-) 62,361-00 --------------------
	Rs.16,764-00

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Interest on EP amount from 07.12.2009 To 17.06.2013 at 6% p.a. (-) 13,195-00 --------------------Balance amount to be paid by the Rs,3,569-00 Decree holder/auction purchaser ---------------------

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On 04.04.2018 the execution court observed in the order that the DHr

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intended to pay the remaining balance amount and therefore the execution court perused the entire material available on record as it was brought to the notice that the sale was conducted and knocked down in favour of the DHr as the highest bidder on 17.06.2013 after permitting DHr to participate in the auction by allowing the petition under Order 21, Rule 72 CPC on the same day, but the docket of the execution proceedings did not reveal the same. The execution Court recorded that the terms were settled on 20.04.2013 and later the matter was posted for proclamation and sale on 05.06.2013 and later the matter was posted for further hearing on 12.06.2013 and that the matter has been again posted on 05.06.2013 for proclamation and sale for want of bidders and the matter was adjourned to 12.06.2013 on which day also the matter was adjourned to 17.06.2013 for sale for want of bidders. It is further noted that on 17.06.2013 also the matter was posted to 26.07.2013 for proclamation and sale directing paper publication in Prajasakthi daily news paper against the JDr in Chittoor local edition and thereafter the matter adjourned from 26.07.2013 till 19.12.2013 at the same stage of proclamation and publication. The execution court, thus concluded that the proceedings did not reflect any auction conducted on 17.06.2013 or the DHr paying amount of poundage or for expenses of

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non-judicial for issue of sale certificate on 17.06.2013, but the record showed that DHr paid 1/4^th amount of the sale price as highest bidder on 17.06.2013. The execution court further recorded that DHr filed a memo on 17.06.2013 stating that the DHr participated in the bid with the permission of the court and in the sale proceedings, the DHr is the highest and successful bidder and requested the execution court to deduct the poundage amount from the sale amount, but the memo was not allowed by the execution court on 17.06.2013. The execution court further recorded that the said memo is also not reflected on the docket.

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In this back drop, the execution court held that the DHr failed to pay the remaining amount of sale price within 15 days of the same as required under Order 21, Rule 85 CPC by set off the amount liable to be paid under the decree and moreover conducting of sale on 17.06.2013 was also not reflected on the docket and therefore the sale conducted on 17.06.2013 shall be set aside. Thus, the execution court passed the impugned order concluding: “Hence sale which was conducted on 17.06.2013 is setting aside.” Immediately the execution court ordered proclamation and sale on 04.06.2018 and directed to publish in Eenadu daily news paper in Chittoor local edition and posted the matter for further hearing on 11.06.2018.

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Having aggrieved by the same, the revision petitioner/DHr filed revision petition contending that the reasons given by the execution court is not justified and that the DHr is unable to pay the balance amount for want

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of permission from the execution court and that the bona fides of the DHr cannot be doubted as 1/4^th of the bid amount has already been paid and the DHr can claim set off against the amount due under the decree. The revision petitioner further contended that since the Courts in Chittoor were often boycotted by the advocates in the issue of bifurcation of States during the years 2013 to 2014 and also since third party filed claim petition which remain pending before the execution court and also the appellate court, the DHr’s efforts and intention of the DHr to pay the balance amount have been impeaded. It is further contended that it is the duty of the execution court to call for the bidder to pay the poundage amount and the expenses for issue of sale certificate in favour of the bidder, but no such effort was made by the court, however the impugned order was passed for no fault of the DHr.

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Heard the learned counsels for the revision petitioner/DHr and respondent/JDr.

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Perused the original record in execution proceedings. The record sent by the execution court contains the docket proceedings from 08.12.2009 to 18.03.2014 only. The record does not contain any petition filed and allowed under Order 21, Rule 72 CPC, nor does it contain any record showing payment of 1/4^th of the amount of sale proceeds. The docket proceedings 17.06.2013 are recorded as “proclaim and sale and issue paper publication in Prajasakhi daily news paper against JDr in Chittoor

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local edition. Call on 26.07.2013”. Again on 26.07.2013, the docket proceedings recorded as “petition filed issue fresh proclaim and a sale on 26.08.2013 and fresh paper publication in prajasakthi daily news paper against JDr further hearing call on 03.09.2013.” The docket proceedings dated 03.09.20123 and 16.09.2013 are recorded as “due to staff are on strike, case is reposted to”. On 22.10.2013 again the execution ordered as “issue fresh proclaim as on 22.11.2013 and fresh paper publication in Prajasakthi daily news paper against JDr., further hearing call on 29.11.2013.” It is pertinent to mention that all the docket proceedings from 17.06.2013 to 22.10.2013 (5 in all) are in typewriting, signed by the presiding officer concerned. Most of the docket proceedings before and thereafter are in handwriting. On 22.11.2013, again the execution court noted that the proclamation filed is incorrect and ordered fresh proclamation and sale in Prajasakthi daily news paper on 12.12.2013 and posted for further hearing to 19.12.2013. This docket proceeding is recorded in handwriting.

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The original file contain a memo dated 12.12.2013 filed by the advocate for DHr along with the original news paper of Prajasakhthi dated 27.11.2013 publishing the notice in EP No.87 of 2009 i.e. the present execution proceedings, giving notice to JDr about filing of execution petition and fixing the date of sale of the schedule property and calling for objections of JDr or else that the matter would be decided ex parte in the absence of JDr. Even after 22.11.2013, the matter was adjourned from

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12.12.2013 to 03.01.2014. On 12.12.2013, the office noted that EAs 76 of 2013 and 77 of 2013 are pending (one of them is claim petition). The court recorded that sale publication was filed and EAs are pending and hence the sale is adjourned and posted the matter to call on 03.01.2014. Thereafter, since EAs are pending, the matter was adjourned from time to time and the last docket proceedings available now before this court is 18.03.2014 reposting to 10.04.2014.

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Thus, it is very much clear that DHr is aware that fresh sale proclamation was ordered even after 17.06.2013. It implies that DHr had knowledge of no sale being recorded by the execution court. Now in the revision petition, some material papers have been submitted showing that petition Order 21, Rule 72 CPC filed by DHr was allowed on 17.06.2013 and also a copy of challan dated 18.06.2013 bearing No.3096 issued by the DTO, Chittoor for an amount of 26,375/- for the purpose of deposit in relation to EP No.87 of 2009 in OS No.205 of 2006 deposited by the Principal Junior Civil Judge, Chittoor. A copy of lodgment schedule issued by I Additional Junior Civil Judge, Chittoor dated 17.06.2013 in this EP No,.87 of 2009 showing the particulars of funds as lodged as 1/4^th of the same amount deposited by auction purchaser and in the remarks column showing Rs.1,05,500/- and the said lodgment schedule is signed by the advocate/DHr. The said lodgment schedule bears an office note on its back as “parties name, case names and amount of Rs.1,05,500-00 is found correct if you your honour pleases issue ‘A’ challan, “signed by a staffer and also an order of the presiding officer

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dated 17.06.2013 as “Issue A challan for an amount of Rs.1,05,500/-“. It is pertinent to note that the revision petitioner enclosed a photostat copy of a complaint dated 30.07.2018 addressed by DHr to the District Judge of the Chittoor District explaining all the facts of sale, depositing 1/4^th of the sale price in the State Bank of India, Greamspet branch, Chittoor town etc., and making allegations against three bench clerks by their names alleging their collusion with tenant of the schedule property by accepting corruption of Rs.10,000/- and requested the District Judge to make an enquiry by seizing all the records in the execution petition. DHr complained theft of docket order of sale and requested to take suitable action against them. Now in the record original docket is available.

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Though the DHr complained in the year 2018 alleging mal-practice of the staffers, as is already noted, the docket and record reflect that DHr participated in the execution proceedings by filing fresh proclamation and publication in news paper and also contesting the claim petition filed by the third party. Moreover, Order 21,Rule 85 CPC mandates filing of a memo of calculation by DHr within 15 days of conducting sale, in case if DHr participates in the auction and purchases the property. Having paid the amount of 1/4^th sale consideration it is not known, nor is it explained as to why the DHr failed to file the memo of calculation and deposit the balance amount within 15 days from 17.06.2013. Boycotting of courts by advocates is not an excuse for the DHr to delay in complying the mandatory provision under Order 21, Rule 85 CPC. Moreover the advocates have not participated

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in boycotting courts for such long period between 17.06.2013 and the calculation memo dated 27.07.2017. If at all there are any mal-practices, since complaint was already given, it is an administrative procedure and the same can be pursued. Response on the complaint is not made known to this court.

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The above discussion clearly indicated that, though DHr paid 1/4^th amount of sale price alleging that she stood as the highest bidder, DHr never thereafter stuck to the sale. DHr did not take steps to take the proceedings in sale in execution forward as required under law and allowed the same to lapse, even if there was any sale at all on 17.06.2013. In such an event, amount deposited can be forfeited also as per Order 21, Rule 86 CPC. Since the execution court has not ordered amount deposited to be forfeited, the amount, if any deposited towards sale price still remains in deposit in relation to the execution proceedings. When there is no conclusive proof of sale being conducted, there is no need to set aside the sale. Moreover, for whatever reason, either for not following Order 21, Rule 85 CPC or for not recording the same said to be held on 17.06.2013, the execution court has to conduct sale of the schedule property in auction and for the same purpose steps have been taken directing fresh proclamation and sale. Thus, the DHr/revision petitioner cannot complain against the proceedings now being held in execution for sale of the schedule property and therefore there is no need for this court in revision to interfere with the

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proceedings before the execution court. It is left open to the DHr to pursue

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her remedies on her complaint, if not so far attended or concluded.

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In the result, the revision petition is dismissed.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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B.S.BHANUMATHI, J

Dt. 08-12-2022 PNV

CRP No.3564 of 2018

THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.3564 of 2018

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Dt:08.12.2022

K. Neelavathi v. J. Maheshwari

Case brief

What is this about?

What did the court decide?

K. Neelavathi v. J. Maheshwari

Case brief

What is this about?

What did the court decide?

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