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PATNA HIGH COURT
Raj Kishore Prasad, J.
Harnandan Singh
Versus
Aditya Narain Singh
Civil Revision No. 1096 of 1960 ; 1099 of 1960 ;
Decided On : OCTOBER 13, 1961
CIVIL PROCEDURE CODE - ORDER 21, RULE 94 - AMENDMENT BY PATNA HIGH COURT - INTERPRETATION - WHETHER MANDATORY OR DIRECTORY - POWER OF COURT TO SET ASIDE SALE - DISCRETIONARY OR MANDATORY - PREPARATION OF SALE CERTIFICATE - MINISTERIAL OR JUDICIAL ACT - NOTICE TO JUDGMENT-DEBTOR - NECESSITY.
Fact of the Case:
In this case, the petitioner, a judgment-debtor, challenged the validity of a sale held in execution of a decree. The sale was confirmed on 15th December 1954, and the decree-holders, who were also the auction-purchasers, filed sale certificate stamps on 12th July 1958, after about three and a half years of the confirmation of the sale. The Court directed the preparation of the sale certificate on 11th August 1960, and it was prepared and handed over to the decree-holders on 29th August 1960. The petitioner filed an application on 29th August 1960, under Sections 47 and 151 and Order 47, Rule 1 of the Code of Civil Procedure, praying to recall the order passed by the court below earlier on 11th August 1960, directing the preparation of the sale certificates, as it had been passed behind their back, without any notice to them, and to set aside the sale in each case for non-compliance, by the auction-purchasers, of the mandatory provisions of the amended Rule 94 of Order 21 of the Code. The Court below rejected the application on 19th September 1960, and the decree-holders applied for delivery of possession. The petitioner filed a revision petition against the order dated 19th September 1960.
Finding of the Court:
The Court held that the provision in the amended Rule 94 for filing of the sale certificate stamp within fifteen days from the date of the confirmation of the sale, is directory and, not mandatory, and, therefore, the Court below had jurisdiction to accept; the sale certificate stamp filed beyond the said prescribed period. The Court further held that the power vested in the Court to set aside the sale was discretionary, and, not mandatory, and, further, that the said provision did not entitle the judgment-debtor to make an application for setting aside the sale, when it had become absolute as envisaged by Rule 92 of Order 31 read with Sec. 65 of the Code; The Court also held that the preparation of a sale certificate being a ministerial act, the judgment-debtor was not entitled to any notice of the proceeding under Rule 94 Order 21 of the Code. The Court further held that the word "may" used in the last pari of Rule 94, giving the Court power to set aside the sale, imports a discretion and the said provision is directory, and not mandatory, and, therefore, the Court below was right in refusing to set aside the sales, even assuming that it could do so.
Issues: 1. Whether the provision in the amended Rule 94 for filing of the sale certificate stamp within fifteen days from the date of the confirmation of the sale, is mandatory or directory? 2. Whether the power vested in the Court to set aside the sale was discretionary or mandatory? 3. Whether the preparation of a sale certificate is a ministerial or judicial act? 4. Whether the judgment-debtor is entitled to a notice of the proceeding under Rule 94 Order 21 of the Code? 5. Whether the word "may" used in the last pari of Rule 94, giving the Court power to set aside the sale, imports a discretion and the said provision is directory or mandatory?
Ratio Decidendi: 1. The Court held that the provision in the amended Rule 94 for filing of the sale certificate stamp within fifteen days from the date of the confirmation of the sale, is directory and, not mandatory, because the use of the word "shall" in the rule is not mandatory in the context of the scheme of the Code and the intention of the Patna High Court in enacting the amendment. The Court observed that the sale becomes absolute under Rule 92(1) of Order 21, and the title vests in the auction-purchaser from the date of the sale under Sec. 65 of the Code. Therefore, non-filing of the sale certificate stamp within the prescribed time does not affect the validity of the sale. 2. The Court held that the power vested in the Court to set aside the sale was discretionary and, not mandatory, because the use of the word "may" in the rule imports a discretion. The Court observed that the Court has been given a discretion to set aside the sale or to refuse to set it aside, and construing the word "may" as mandatory would lead to absurdity and conflict with Sec. 65 and Rule 92 of Order 21 of the Code. 3. The Court held that the preparation of a sale certificate is a ministerial act, and not a judicial one. The Court observed that the sale certificate is only an evidence of title which has already vested in the purchaser under Sec. 65 of the Code, and the action of the Court in granting a sale certificate is a ministerial act. 4. The Court held that the judgment-debtor is not entitled to a notice of the proceeding under Rule 94 Order 21 of the Code, because the preparation of a sale certificate is a ministerial act and not a judicial one. 5. The Court held that the word "may" used in the last pari of Rule 94, giving the Court power to set aside the sale, imports a discretion and the said provision is directory and not mandatory. The Court observed that construing the word "may" as mandatory would lead to absurdity and conflict with Sec. 65 and Rule 92 of Order 21 of the Code.
Final Decision: The Court dismissed the revision petition and affirmed the impugned order dated 19th September 1960.
Raj Kishore Prasad, J.
1. These four applications in revision, under Sec.115 of the Code of Civil Procedure, hereinafter referred to as The Code", arise out of an equal number of execution cases and an equal number of objections filed by the petitioner and others in those cases.
2. xxx
3. In all these four cases, the decree-holders were the same, but the judgment-debtors were different. In this Court, however, in all the four cases, the petitioner is one and the same person, namely, Harnandan Singh, one of the Judgment-debtors, and, the opposite parties, who are the decree-holders auction-purchasers, are also the same persons. As some common questions of law arise in all these four cases they have been heard together, and, therefore, this judgment will govern them all.
4. Civil Revision 1096, 1098 and 1099. In these three cases, the facts are the same: The sales of the properties of the petitioner and others were held on the 15th November, 1954, and, the decree-holders opposite parties themselves purchased them at the auction sales. The sales were confirmed on the 15th December, 1954. On the 20th April 1955, three different applications were made by different Judgment-debtors, under Order 21, Rule 90 of the Code, for setting aside the sale. The said applications were rejected on the 15th February, 1956, and, the said order confirming the sales was upheld on appeal by the District Judge on the 31st October, 1957.
5. The decree-holders, auction-purchasers, then, on the 12th July, 1958, after about three and a half years of the confirmation of the sales, fied sale certificate stamps in each case, for preparation of the sale certificate, as required by Rule 94, as amended by this Court, of Order 21 of the Code. On the 11th August, 1960, the Court directed the preparation of the sale certificate in cach case and handing over of the same to the dccree-holders auction-purchasers opposite parties. On the 23rd August, 1960, the sale certificate Was prepared in each of these three cases, and, was sealed and signed, and handed over on the 29th August, 1960, to the opposite parties.
6. On the 29th August, 1960, an application purporting to be under Sections 47 and 151 and under Order 47, Rule 1 of the Code, was filed in each of these three cases by the petitioner and others praying therein to recall the order passed by the court below earlier on the 11th August 1960, directing the preparation of the sale certificates, as it had been passed behind their back, without any notice to them, and to set aside the sale in each case for non-compliance, by the auction-purchasers, of the mandatory provisions of the amended Rule 94 of Order 21, of the Cede. These objections were heard and rejected by the Court below on the 19th September, 1960, by a separate order in each case.
7. The auction-purchasers, after obtaining the sale certificates, applied on the 19th September, 1960, in Civil Revision 1096 of 1960, for delivery of possession, and the Court below on the 30th November, 1960 directed the issue of delivery of possession, in that case, fixing the 22nd, December, 1960 for service return. The petition of the petitioner and others filed on the 9th December 1960, in the said case, for recalling the earlier order directing the issue of delivery of possession, was rejected by the Court below on the same day, i.e. on the 9th December, 1960, on the ground that the delivery of possession had already been given, and, thereafter, the proceeding for delivery of possession was disposed of on the 22nd, December, 1960.
8. In C. R. 1097 of 1960, the application for delivery of possession was made on the 29th October, 1960; and in C. Rule 1098 of 1960, a similar application was made on the 19th September, 1960 The further ordersheets of these two cases have not been sent up, and, therefore, the date of delivery of possession in these two cases is not known. Hut it was conceded, on behalf of the petitioner, that in each of these three cases also deliver
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