1986 Supreme(Bom) 92

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Dhabe H.W., J.
Gulabsingh Bacchusingh Thakur...Applicant.
Versus
Chandrapalsingh Sheonathsingh Thakur others....Non-applicants.
Civil Revision Application No. 383 of 1982, decided on 10-3-1986.
Advocates appeared :
A.S. Bobde V.C. Daga, for applicant.
S.C. Mehadia, for non-applicants Nos. 3-A to 3-E 4.
V.R. Manohar M.H. Rizwy, for non-applicant No. 7.

Headnote:Order XXI Rule 90 and Section 47 and Partition Act Section 3-Consent decree in a suit for partition -On the terms that each co-owner having 1/6 share. In the disputed house and since, it was incapable of being partitioned. The same should be sold-And the sale proceeds be distributed among them according to the share allotted-Sale being null and void-No case of substantial injury made not.

       The provisions relating to the sale of immovable property in execution of the decrees are contained from Rule 64 of Order 21 of the Code onwards. Order 21 Rule 64 of the Code empowers the Court to sell the property of the judgment debtor and to payout of the sale proceeds the money decree of the decree holder. Rule 65 of Order 21 of the Code, which is more relevant to this case, provides that "save as otherwise prescribed, every sale in execution of a decree shall he conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall he made by public auction in manner prescribed." It is thus clear from Rule 65 of Order 21 of the Code that every sale in execution of a decree has to be made by a public auction. Even the trial Court itself, therefore, has directed the sale in the instant case to be made by a public auction.

       Rule 66 provides that "where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court." Sub-section (2) of Rule 66 then provides for drawing up of a proclamation by the trial Court itself after issuing notice to the decree holder and the judgment debtor.

       It is well settled that the provision of Rule 65 of Order 21 of the Code is mandatory and, therefore, every sale. In execution of the decree under the Code has to be by public auction. Therefore, if the sale by calling for offers by advertisement is not a sale by public auction it would not be sale to which the provisions of Order 21 Rule 90 of Code would be applicable became such a sale would he null and void being in breach of Order 21 Rule 65 of the Code as well as the order of the Court dated 25-2-1982 (see AIR 1968 S.C. 954). The power of the Court to consider legality or otherwise of such a sale is then under Section 47 and not under Order 21 Rule 90 of the Code.

       If the requirement of Rule 65 of Order 21 of the Code is that every sale shall be by a public auction, then the sale held in any other manner would be a nullity. In the instant case, even the Court by his order has directed to hold the sale by public auction by his order dated 25-2-1982. The Commissioner, therefore, had no power to hold the sale by calling for offers by advertisement in the instant case. In fact the procedure provided under the relevant rules under Order 21 of the Code for public auction should have been followed by the Court and the Commissioner in the instant case. The sale held in the instant case is, therefore, a nullity. In this view of the matter, the requirement of Rule 90 of Order 21 of the Code that there must be a substantial injury need not be looked into.

       Whether the non-applicant No.7, who is a stranger and has given the highest offer and deposited the money as per the directions of the trial Court, is entitled to interest upon the amount deposited by him in the trial Court for the purchase of the suit house on consideration of the principles of equity because his money was locked up in the deposit without there being any fault on his part. The said ground is urged on behalf of the non-applicant No.7 on the basis of the principles of equity. The learned Counsel for the non applicant No.7 has ruled upon the principles of restitution incorporated in Section 144 of the Code. According to him, the auction purchaser would have been entitled to possession of the house after the sale was confirmed if there was no stay of this Court. It is his submission that for no fault of the auction purchaser (non applicant No.7) who is altogether a stranger to the dispute between the parties in the instant suit, he suffered for all these long years he could not utilise the money deposited by him on 13-4-1982.

       It is, however, contended on behalf of the applicant that the principle relating to the repayment of the purchase money with or without interest is contained in Order 21 Rule 93 of the Code. The submission is that the said provision is exhaustive and except in cases covered by the said provision, no interest upon the deposit can be directed by the Court. The further submission is that unless the amount of purchase money is actually paid to the applicant and other co-owners, the interest cannot be awarded to the auction purchaser because the Court can direct the payment of interest only against any person to whom the amount deposited has been paid. It is also the contention that even on equitable considerations, the auction purchaser is not entitled to any interest from the applicant. It is urged that the auction-purchaser himself should have taken care to seek order from the trial Court to invest his purchase money in some good securities so as to earn fair interest upon the same and by his failure to do so, he cannot penalise the successful parties by requiring them to pay the interest.