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2016 Supreme(Bom) 1854
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.K. SONAWANE, J.
Kausar Sultana W/o Sk. Shakeel - Petitioner
Versus
City Finanacial Consumer Finance India Ltd. - Respondent
Writ Petition No. 2754 of 2013
Decided on : 26-10-2016
Advocate Appeared:
For the Petitioner:Mr. C.R. Thorat, Advocate.
For the Respondent:Mr. S.S. Gangakhedkar, Advocate, Mr. L.D. Vakil, Advocate, Mr. A.D. Kasliwal, Advocate, Mr. N.T. Tribhuwan, Advocate, Mr. R.C. Bora, Advocate.
Headnote:Civil Procedure Code, 1908-Order XXI, Rule 89(1)-Limitation Act, 1963, Article 127- Application for setting aside auction sale.-Application for setting aside auctions sale under Order XXI, Rule 89 of CPC has to be made within prescribed period of 60 days from date of sale.
It pertains to the provisions of Rule 58 of Order XXI of Civil Procedure Code. The provision of Order XXI, Rule 89 is totally based on different criteria and would not be equated with the provisions contemplated under Order XXI, Rule 58, where the objection is allowed to be raised to attach the property being not liable for attachment. Rule 89 of Order XXI, prescribe the remedy for interested person to file an application in the Court to set aside the sale on deposit of the amount. It is to be noted that the object of Rule 89 is to put an end the dispute of every kind by providing the last opportunity to the judgment- debtor to save the property. The application under Order XXI, Rule 89 of Civil Procedure Code is required to be made within the prescribed period of 60 days from the date of sale.
The provision of Order XXI, Rule 92 of Civil Procedure Code provides that where no application is made under Rules 89, 90 or 91 of Civil Procedure Code or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale becomes absolute. The stage of confirmation of sale is the stage lateron after disallowing the application under Order XXI, Rule 89 of Civil Procedure Code or if no application is made to set aside auction sale on depositing the requisite sum. Therefore, it is fallacious to appreciate that the date of sale for application under Order XXI, Rule 89 of Civil Procedure Code would be the date of confirmation of sale by the executing Court and not the date on which the auction sale has actually taken place. The date of sale on which property put to auction agreed to be given to highest bidder would be the date to be considered as date of sale for the application under Order XXI, Rule 89 of Civil Procedure Code.
Civil Procedure Code, 1908-Order XXI, Rule 89(1)-Limitation Act, 1963, Section 5 and Article 127-Setting aside of auction sale.-Application for setting aside auction sale filed beyond period of 60 days of limitation, cannot be entertained by Executing Court.
The Division Bench of the Court in the matter of Sayed Mohomed Raja Sayed Sadak Miya v. Thoakordas Chaturbhujdas, AIR 1926 Bom 335 (2), dealt with the similar issue and delineated that the date of sale prescribed under Order XXI, Rule 89 is when the property is put up for auction sale and knocked down to the highest bidder.
It is manifestly clear that the period of limitation to make an application under Order XXI, Rule 89 of Civil Procedure Code should be reckoned from the date of sale when the property is put in auction. It would be reiterated that the date of sale in the instant case is 23.4.2012. Therefore, the application to set aside the sale on deposit of amount in the Court under Order XXI, Rule 89 of Civil Procedure Code is required to be made within 60 days from the date of sale i.e. 23.4.2012. But the petitioner moved an application after about a delay of 3 days, which cannot be condoned at all as per mandate of the law. There is no error in the impugned order passed by the Executing Court while rejecting the application to set aside the sale being time barred.
K.K. Sonawane, J.
Rule. Rule made returnable forthwith. Heard finally, with the consent of parties.
2. The petitioner is assailing the order below Exh. 61 passed in R.D. No. 149 of 2009 dated 25.10.2012 by the Executing Court, Aurangabad, rebuffing the relief prayed in the application purportedly filed under Order 21, Rule 89 of CPC, to set aside the auction sale on deposit of the amount. The petitioner also agitated the propriety and validity of the common orders below Exh. 29 and 74 dated 27.2.2013, of the Executing Court, Aurangabad, thereby issuing directions to pay auction proceeds to the respondent No.2 ARCIL towards partial satisfaction of its secured debts as well as directions for payment of amount deposited in the court by the petitioner vide application under Order 21, Rule 89 of CPC to the respondent No.1 - Decree Holder.
3. The genesis of the petition culled out in brief is as under :- That, the petitioner availed financial assistance of Rs. 5 Lakhs from the respondent No.1 City Financial Consumer Finance India Ltd., for purchase of immovable property I.e. Flat No.3, Noor Complex building located at S.T. Colony Aurangabad. The loan agreement was executed on 7.9.2007 and accordingly petitioner purchased aforesaid immovable property on 29.10.2007 after executing registered sale deed from the owner Kadiruddin Kadri. Thereafter, petitioner failed to comply with the terms and conditions of loan transaction and did not repay the loan amount. Consequently, an amount of Rs. 5,61,731/- was found outstanding towards the petitioner. Hence, respondent No.1 financial institution referred the dispute to the Arbitral forum for recovery of loan amount. The sole arbitrator, considering the attaining circumstances on record, passed an order directing the petitioner to pay a sum of Rs. 5,61,731/- with interest. The petitioner did not respond to the award . Eventually, respondent No.1 DH, preferred a Regular Darkhast bearing No. 149 of 2009, for enforcement of the award under section 36 of the Arbitration Act, 1996. The Executing Court also did not receive any communication from the petitioner for satisfaction of the decree. At last, the requisite order of auction sale of the mortgaged immovable property, I.e. Flat No.3, Noor Complex, ST colony, Aurangabad came to be passed for recovery of decretal amount. In the process of auction sale respondent No.3 Mr. Mohammad Parvej s/o. Haminuddin was declared as successful bidder for consideration price of Rs. 10.75,000/-. The highest bid was accepted by the Executing Court and he was directed to deposit 25% amount of the auction price.
4. Meanwhile, respondent No.2, ARCIL, approached to the Executing Court and filed application Exh.29 for recovery of its secured debt. It has been contended that immovable property Flat NO.3, Noor Complex, Aurangabad is the property mortgaged with it by depositing the original title deeds, on the part of its original owner Kadiruddin Kadri. It has been submitted that ICICI bank had granted house loan of Rs. 4,30 lakhs in the name of Mr. Kadiruddin Kadri as well as his co-borrower, Saira w/o. Kadiruddin Kadri for purchase of immovable property i.e. Flat No.3 Noor complex, Aurangabad. After execution of registered sale deed, the ICICI has created charge in the said property on 30.6.2003. Thereafter, the ICICI bank has transferred and assigned its right and interest of the immovable property in home loan agreement in favour of respondent No.2 ARCIL. Accordingly, respondent No.2 ARCIL preferred the application Exh. 29 for recovery of secured debt from the auction sale being a secured creditor. The respondent No.2 ARCIL claimed first charge over the auction sale proceeds of the flat NO.3, Noor Complex, which took place on 23.4.2012. Respondent No.3 Mohd. Parvej was declared successful bidder for an amount of Rs.10,75,000/-.
5. Petitioner submitted that, she was not aware about the sale of her flat in auction for recovery of the loan. She came to know about the
