Dismissed

Dasmi Ram v. Tilu Devi

Himachal Pradesh HC2 May 2018CMPMO/554/2017

Case brief

AI extract

What is this about?

Challenging the setting aside of a land sale, this petition was dismissed. The court held that a judgment debtor could escape a confirmed valid sale by depositing five percent purchase money and the proclamation amount under Order 21 Rule 89 CPC, even if the application was filed after the decree execution. Citations relied upon include Challamane Huchha Gowda.

What did the court decide?

Petition dismissed with no illegality or infirmity found in the lower court orders setting aside the sale.

Dasmi Ram Vs Tilu Devi — Execution and Attachment | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 554 of 2017 Decided on 2.5.2018

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_______________________ Dasmi Ram	_____________________ Versus	______________________ …..Petitioner
Tilu Devi and Ors.		… Respondents
_______________________ Coram:	_____________________	______________________

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Hon’ble Mr. Justice Sandeep Sharma, Judge

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Whether approved for reporting?¹ Yes.

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For the petitioner	: Mr. G.R. Palsra, Advoca	te.
For the respondent	: Mr. Vijay K. Arora,	Advocate,	for
	respondent No.1.
	Ms. Devyani Sharma,	Advocate,	for
	respondent No.2.
________________________ Sandeep Sharma, Judge	_____________________________ (oral):	_____________

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By way of instant petition, challenge has been laid to order dated 14.11.2017, passed by the learned Additional District Judge, Kullu, H.P., in CMP No. 217-VI/2016, affirming the order dated 12.6.2017, passed by the executing court below, whereby it allowed the application having been filed by the respondent No.1 Smt. Tilu Devi (JD No.3 before the executing Court), under order 21 Rule 89 CPC and set aside the sale of land of JD No.3, made in favour of auction

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purchaser i.e. Dasmi Ram (present petitioner).

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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2. Facts as emerge from the record are that the land of JD No.3 Tilu Devi was mortgaged with decree holder-Bank i.e. respondent No.2 and same was ordered to be sold on 30.7.2016, in terms of order dated 1.6.2016. After publication of sale on 30.6.2016, executing court below having called report on 17.8.2016, sold the land of JD No.3 in public auction. Present petitioner Dasmi Ram gave the highest bid of Rs. 3,71,000/-. He also deposited the aforesaid amount with the Collector, Kullu, who vide communication dated 16.8.2016, remitted the amount to the executing court by way of draft. Subsequently, on 17.8.2016, JD No.3 filed an application under Order 21 Rule 89 CPC read with Section 151 of CPC, seeking therein permission to deposit a sum of 3,90,000 (i.e. 3,71,000/- sale consideration amount plus Rs.19,000 as 5 % of purchase money before the executing Court. Learned executing Court allowed the application filed under Order 21 Rule 89 and set aside the sale made in favour of the present petitioner in auction proceedings. Learned court below also permitted JD No. 3 to deposit a sum of ` 3,90,000/-.

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3. Being aggrieved and dis-satisfied with the aforesaid order passed by the executing Court, present petitioner filed an appeal under Order 41 Rule 1 CPC in the Court of learned Additional District Judge, Kullu, H.P., however, fact remains that same was dismissed. In

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the aforesaid background, present petitioner has approached this Court in the instant proceedings, laying therein challenge to judgment dated 14.11.2017, passed by the learned Additional District Judge as well as order dated 12.6.2017, passed by the learned executing Court. 4. Mr. G.R. Palsra, learned counsel appearing on behalf of the present petitioner, while inviting attention of this Court to the documents placed on record, vehemently contended that respondent No.1 (JDNo.3) did not approach the executing court with clean hands, rather she made an attempt to hoodwink the court by misstating the facts. While referring to the application filed under Order 21 Rule 89 CPC, Mr. Palsra contended that JD No.1 stated before the court below that notice under Order 21 Rule 66 was not received by her till date, whereas record reveals that pursuant to notice issued to her under Order 21 Rule 66 CPC, the counsel namely P.P. Rana, put in appearance on her behalf and repeatedly procured time from the Court to file objections. Since JD No.3 failed to file objection, learned court below rightly ordered for auction of her mortgaged property. Mr. Palsra, further, contended that keeping in view the conduct of JD No.3, court below ought to have dismissed her application filed under order 21 rule 89.

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5. Mr. Vijay K. Arora, Advocate, representing respondent

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No.1 (JD No.3) supported the impugned judgment passed by the court below and contended that Rule 89 of Order 21 is the only mean by which, a judgment debtor can escape from a sale that has been validly carried out. He further contended that application at hand came to be filed on behalf of JD No.3, immediately after sale and as such, there is no illegality and infirmity in the order passed by the court below, whereby court below taking note of the fact that JD No.3 deposited a sum of Rs. 390,000/- in the learned court below, set aside the sale made in favour of the present petitioner in auction proceedings. In support of his aforesaid contention, Mr. Arora, also placed reliance upon judgment passed by the Hon’ble Court Apex Court in Challamane Huchha Gowda v. M.r. Tirumala and Anr., 2004 (1) SCC 453.

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6. I have heard the learned counsel for the parties and gone through the records of the case.

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7. It is quite apparent from the record that JD No.3 (respondent No.1) filed an application under Order 21 Rule 89 CPC read with Section 151 of CPC, for setting aside auction sale of the property on 17.8.2016, i.e. one day after confirmation of sale, which was sold on 30.7.2016. Though, JD No.3 in her application claimed that

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she did not receive any notice under Order 21 Rule 66 CPC, but bare perusal of zimini orders placed on record, suggests that Mr. P.P. Rana, Advocate, not only filed power of attorney on behalf of JD No.3 but he kept on appearing in the Court on her behalf, but once JD No.3 failed to file objections despite repeated opportunities, executing court below proceeded to order for sale of her mortgaged property. Order 21 Rule 89 provides for two conditions; one is depositing of sum equal to five percent of the purchase money to be paid to the purchaser; second is depositing of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied, the Court can make an order for setting aside the sale under Rule 92(2) of Order 21 of CPC on an application made to it. N o doubt in the case at hand JD No.3 was in know of proceedings pending before the executing Court under Order 21 Rule 66 CPC, but that cannot be a ground to set aside the order passed by the executing Court in the application having been filed by JD No.3 under Order 21 Rule 89, especially when two conditions as stated herein above, have been duly satisfied by JD No.3. In this regard, reliance is placed upon the judgment passed by the Hon’ble Court Apex Court in Challamane

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Huchha Gowda v. M.R. Tirumala and Anr., 2004 (1) SCC 453, relevant

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para whereof, is reproduced herein below:-

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“9. Execution is the enforcement, by the process of the Court of its orders and decrees. This is in furtherance of the inherent power of the Court to carry out its orders or decrees. Order 21 of CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order 21 is the only means by which a Judgment Debtor can escape from a sale that has been validly carried out. The object of the rule is to provide a last opportunity to put an end to the dispute at the instance of the Judgment Debtor before the sale is confirmed by the Court and also to save his property from dispossession. Rule 89 postulates two conditions: they are depositing-(l) of sum equal to five percent of the purchase money to be paid to the purchaser, (2) of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied the Court shall make an order for setting aside the sale under Rule 92(2) or Order 21 CPC on an application made to it. In other words, then there will be compliance of Court's order or decree that is sought to be executed. Because the purpose of the Order 21 is to ensure that carrying out of the orders and decrees of the Court. Once the Judgment Debtor carries out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said rule. Therefore, upon the satisfaction of the compliance with conditions as provided under Rule 89, it is mandatory upon the Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons.”

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8. Consequently, in view of the aforesaid discussion as well as

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law laid down by the Hon’ble Apex Court, this Court sees no illegality

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and infirmity in the order/judgment passed by the courts below and as

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such, same are upheld. Accordingly, present petition is dismissed

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being devoid of any merits. Needless to say that in view of the instant order passed by this Court, sale proceeds lying deposited with the executing Court would be released in favour of decree holder along with proportionate interest, whereas remaining amount shall be remitted in favour of the purchaser-present petitioner.

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2^nd May, 2018 (Sandeep Sharma), manjit Judge

Dasmi Ram v. Tilu Devi

Case brief

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Dasmi Ram v. Tilu Devi

Case brief

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