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Andhra Pradesh High Court
Judges : L.NARSIMHA REDDY
J.Ramalakshmi - Appellant
Versus
M.V.R.K.Mutyalu - Respondent
Decided On : 07-09-04
Held : It is not as if the auction-purchaser is entitled to make the deposit straightaway. He had to be issued a challan by the executing Court after verification of the records. If the process for making a deposit is started within the time stipulated, the fact that the remaining part of it had taken place subsequent to 15 days should not be permitted to defeat the rights of an auction purchaser.
Initiation of steps for depositing the stamps within time, would stop the time from running, till the completion of the process. This, however, is subject to the auction-purchaser complying with the steps ordained by the executing Court. The situation is comparable to presentation of an otherwise defective appeal within the period of limitation and curing of the defect, subsequently.
The respondent applied for issuance of challan to the Executing Court on 1. 6. 2002. A perusal of the record discloses that the learned Presiding Officer passed appropriate orders for issuance of challan at 7. 30 p. m. Learned Counsel for the petitioner submits that the Court shall be deemed to have functioned only till 5. 00 p. m. and passing of an order for issuance of challan at 7. 30 p. m. cannot be recognized for the purpose of Rule 85. Though it may be true that the order was passed at 7. 30 p. m. , it is not clear as to when the respondent applied for it. If it were to be a case where the application itself was made beyond the prescribed time, the Court itself would have refused to accept it. The fact that the order for issuance of challan was passed at 7. 30 p. m. discloses the concern of the Executing Court to ensure that the rights that have accrued to the respondent are not defeated, on account of the delay on the part of the Court, in considering the application for issuance of challan.
Once the challan was applied for within the stipulated time, the fact that the subsequent steps came to be taken at a later point of time hardly makes any difference. From the endorsement, which is the subject-matter of this revision, it is evident that the Executing Court had received the amount covered by the challan. The various stages through which the proceedings have passed, disclose that on one pretext or the other, the efforts of the respondent to deposit the amount were thwarted either by the Ministerial staff of the Court or the petitioner. The delay cannot be attributed to the petitioner. It was only in the month of August 2002 that the Executing court had received the amount, necessary for purchase of stamps. Therefore, it cannot be said that the Executing Court committed any illegality or that the steps taken by it suffer from any infirmity. It is also brought to the notice of this Court that the sale itself was confirmed on 27. 7. 2002. Though the learned Counsel for the respondent had made submissions on the strength of Rule 90 of order XXI C. P. C. , this Court feels it not necessary to delve into that aspect, since it is held that the steps taken by the Executing court are lawful and do not suffer from any infirmity.
( 1 ) A short but important question falls for consideration in this revision viz. , whether it is permissible for depositing of general stamp under Rule 85 of order XXI C. P. C. beyond the time stipulated therein.
( 2 ) THE respondent filed O. S. No. 73 of 1990 in the Court of Senior Civil Judge, amalapuram against the petitioner for recovery of a sum of Rs. 1,55,000. 00 with interest. The amount was borrowed by the petitioner on the strength of mortgage. A preliminary decree was passed on 7. 7. 1997. Thereafter, final decree was passed on 5. 3. 1999. Since the petitioner did not comply with the same, respondent filed E. P. No. 78 of 1999. The sale of the mortgaged property was conducted on 17. 4. 2002. The respondent also participated in the auction, with the permission of the Court, and emerged as the highest bidder for a sum of rs. 5,85,000/ -.
( 3 ) SINCE the respondent, the decree holder, is the highest bidder, there was no necessity for him to deposit the bid amount, in view of Rule 72 of Order XXI C. P. C. However, there is no exemption from depositing the stamps within 15 days from the date of auction, under Rule 85. The court closed for vacation from 1. 5. 2002 and it re-opened on 1. 6. 2002. On the reopening day, the respondent applied for issuance of challan. The Presiding Officer passed an order on that day itself for issuance of challan. However, the amount was not deposited within the time. It was only through order dated 27. 8. 2002 that the Executing Court received a sum of rs. 29,250/-, towards cost of stamps. The petitioner challenges the order dated 27. 8. 2002 passed by the Executing Court on the ground that it was not competent for it to have permitted depositing of the stamps, after expiry of 15 days from the date of auction.
( 4 ) SRI Ganta Suryanarayana, learned counsel for the petitioner, submits that the time stipulated under Order XXI, Rule 85 c. P. C. , as amended by the State of Andhra pradesh, cannot be extended under any circumstances, and the consequences provided for under Rule 86 have to follow, on non-compliance with the same. He further contends that the Executing Court does not have the jurisdiction to receive the stamps beyond the time stipulated under rule 85. He places reliance upon the judgments of this Court rendered in mudragada Suryanarayanamurti v. Southern Agencies, AIR 1962 AP 271 and kudiyala Ramana v. Vattikolla Somaraju and others, 2003 (2) ALD 93 = 2003 (2) ccc 137 (AP ).
( 5 ) SRI Venkata Ramana, learned counsel appearing for Sri D. V. Sitarama murthy, Counsel for the respondent, on the other hand, submits that the respondent has applied for issuance of challan, within the time stipulated, under Rule 85 and thereby, the process for depositing of the stamps has commenced. According to him, the delay in completion of the entire process was not attributable to the respondent and, at any rate, once the process has commenced within time, the requirement of Rule 85 stands complied with. He relies upon two judgments rendered by Division Bench of this Court reported in m. Suryanarayana Rao v. Bommana chinna Konda Reddi, AIR 1958 AP 472 and Ambati Raghavulu v. Mova Venkamma and others, AIR 1962 AP 334.
( 6 ) THE decrees obtained by the respondent against the petitioner in a mortgage suit became final. He filed E. P. No. 78 of 1999 for sale of the mortgaged property. After obtaining permission of the Executing Court, under Rule 72 of order XXI C. P. C. , he participated in the auction held on 17. 4. 2002 and emerged as the highest bidder for a sum of Rs. 5,85,000. 00. Rule 85 of the said Order prescribes 15 days, for full payment of the purchase money, from the date of sale of the property. This rule was amended by the State of madras to the effect that the purchase money as well as the general stamp for certificate under Rule 94 or the amount required for such stamp shall also be deposited within 15 days. This amendment was adopted by the State of Andhra pradesh
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