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Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, K.RAMACHANDRA RAO
Fatima Sultana Begum - Appellant
Versus
J.Eashwarprasad - Respondent
Decided On : 07-21-76
CIVIL PROCEDURE CODE - ORDER XXI, RULE 90 - SECTION 47 - SECTION 151 - ADMINISTRATION SUIT - SALE OF PROPERTY - JURISDICTION OF COURT - MAINTAINABILITY OF PETITION - SALE BY RECEIVERS - POWER OF COURT TO RECTIFY ILLEGALITY OR IRREGULARITY.
Fact of the Case:
In an administration suit, a preliminary decree was passed, followed by an interim final decree on consent of all parties. The interim final decree directed the sale of a property, which was carried out by receivers appointed by the court. The appellant, one of the daughters of the deceased, filed a petition under Order XXI, Rule 90 and Section 47 of the Civil Procedure Code (CPC) to set aside the sale, alleging fraud and collusion between the receivers and the purchasers. The court below dismissed the petition on the ground that it was not maintainable under Order XXI, Rule 90 or Section 47 CPC.
Finding of the Court:
The court held that the sale was not governed by Order XXI, CPC, as it was not a sale in execution of a decree. The court also held that Section 47 CPC was not applicable as the sale was not held in an execution petition. However, the court held that the petition was maintainable under Section 151 CPC, which gives the court inherent power to rectify any illegality or irregularity in its own proceedings.
Issues: 1. Whether the sale of property in an administration suit is governed by Order XXI, Rule 90 CPC. 2. Whether Section 47 CPC is applicable to a sale held in an administration suit. 3. Whether a petition to set aside a sale on the ground of fraud and collusion is maintainable under Section 151 CPC.
Ratio Decidendi: 1. Order XXI, CPC applies to sales in execution of a decree, and not to sales effected by receivers appointed by the court in an administration suit. 2. Section 47 CPC applies to sales held in execution of a decree, and not to sales held in an administration suit. 3. A petition to set aside a sale on the ground of fraud and collusion is maintainable under Section 151 CPC, which gives the court inherent power to rectify any illegality or irregularity in its own proceedings.
Final Decision: The court allowed the appeal and directed the court below to dispose of the petition on merits.
( 1 ) THIS Civil Miscellaneous Appeal is preferred by the 6th defendant in o. S. No. 18 of 1962 on the file of the learned Chief. udge, City Civil Court, at Hyderabad, against the order dated 14-12-1973 dismissing I A No. 2179 of 1973 filed by the appellant, as not maintainable in law. It is necessary to state a few facts for appreciating the question at issue.
( 2 ) ONE Sajid Yar Jung died leaving a will, where under he bequeathed 1/3 interest in his properties in favour of respondents 15 to 21 in this appeal. He had two sons, namely, (i) Kazim Nawaz Jung respondent No. 21 and (ii) askar Nawag Jung (the predecessor-in interest of respondents 23 to 34) Respondents 43 to 47 are the daughters of the deceased while respondents 35 to 42 are his creditors. Respondents 1 and 2 are the joint receivers appointed in the said suit by the Court below, while respondents to 1,4 are the purchasers of a building known as "woodcock Hall" at ooty. The appellant herein is one of the daughters of the deceased, who was impleaded as defendant No. 6 in the suit.
( 3 ) O. S. NO. 18/1962 was an administration suit filed under Or. XX, R. 13, cpc. A preliminary decree was passed on 11-3-1964 whereunder one Sri K. Niladhri Raju, Advocate, was appointed the Receiver to carry out the several directions given there under. An appeal, c. C. C. A. No. 22/1964 was filed against the said preliminary decree in this court. in appeal, there was a compromise between all the parties in the suit and an interim final decree was passed on 27-6-1964. Under this compromise interim final decree, Sri K. Niladhiri raju was discharged and the two sons of the deceased, namely, Kazim Nawaz jung and Askar Nawaz Jung, as well as the 2nd plaintiff in the suit respondent no. 16 in this appeal) were appointed as joint Rrciver Paragraphs 6 and 8 of the said decree are relevant for our purposes and may, therefore be extracted in full. "clause (6):_that, the Wood Cock hall at Ooty shall be sold by the Receivers-cum-Commissioners either privately or by public auction or in any manner they think fit and shall deposit the sale proceeds into Court and that, after paying the Court-fees estate duty, stamp duty and the remuneration of the discharged Receiver-cum-commissioner in the firstinstance, the share of the 5th defendant herein shall be separated for meeting the liabilities of sajjid Yar Jung if any, therefrom and the balance shall be paid to the legatees and their family full or part satisfaction memo, as the case may be and that, in case of the sale proceeds of the Wood Cock Hall at Ooty are found to be insufficient to satisfy the claim of legatees and others then the claims of the lagatees shall be paid by auctioning the other matruka of late Nawab Sajid Yar jung excluding the share of the defendant no. 5 in execution of this decree. ""clause No, (8):- That, incase the receivers-cum-Commissioners fail to pay the legatees plaintiffs 1 to 7 and the defendants 1 and 2) the amounts as per the terms of this decree within one year from the date of recording of the compromise, the legatees shall be at liberty to realise the same or any balance thereof in execution of this decree against the interests of defendants 4 and 6 to 10 in all or any of the properties of the estate and that, in case the legatees chose to proceed against the Wood Cock Hall at Ooty, ihe fifth defendant shall not have any objection and that the share of the fifth defendant in such sale proceeds shall be paid to him through court. ".
( 4 ) INASMUCH as the concerned parties did not carry out the terms of clause 7, an execution petition (E. P. No. 12 of 1967) was filed on 13-3-1967 in terms of clause 8 thereof. In this execution-petition, one Sri Mallikarjuna Rao. Advocate was appointed as a Receiver to fell the hall. But, the joint Receivers appointed under the interim final decree applied (I A. No. 683/68) for discharing the said sri Mallikarjuna Rao and for appointing m/sj. Moosa and Sons to sell
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