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2003 Supreme(Pat) 393
PATNA HIGH COURT
Nagendra Rai, J.
Dilip Kumar Singh @ Dilip Kr.Sinha
Versus
Mostt.Sakuntala Devi
Civil Revision No. 2178 of 2001 ;
Decided On : APRIL 07, 2003
Fraud vitiates everything, including court proceedings, and auction sales held without fulfilling mandatory provisions are void ab-initio.
Headnote:
fraud - auction sale - Order XXI Rule 90 of the Code - Order XXI Rule 64 - Order XXI Rule 66 - Order XXI Rule 47 - Limitation Act Art. 127 - setting aside sale - nullity in the eye of law
Fact of the Case:
The judgment-debtors filed a civil revision application against the appellate order setting aside the sale of their property for realization of costs. The trial court set aside the sale on the ground of fraud, but the appellate court held the application to be beyond the limitation period and found no fraud in the sale.
Finding of the Court:
The court found that the auction sale was vitiated by fraud and violated mandatory provisions of Order XXI Rules 64 and 66. The court held that the sale was a nullity in the eye of the law and could be set aside under Order XXI Rule 47 or Section 151 of the Code, despite the application being beyond the limitation period.
Issues: The issues revolved around the validity of the auction sale, the application's timeliness, and the commission of fraud in conducting the sale.
Ratio Decidendi: The court held that fraud vitiates everything, including court proceedings, and that pre-sale illegalities are amenable to the remedy under Section 47 of the Code. It also emphasized that the auction sale held without fulfilling the requirements of mandatory provisions would be void ab-initio.
Final Decision: The civil revision application was allowed, the appellate court's order was set aside, and the trial court's decision to set aside the sale was upheld. The judgment-debtors were ordered to pay the amount deposited by the auction purchaser and an additional lump sum amount for the retention of his money.
Nagendra Rai, J.
1. The judgment-debtors/ petitioners have filed the present civil revision application against the appellate order dated 18th October, 2001 passed by AddI. District Judge-X. Patna in Miscellaneous appeals setting aside the order dated 3rd May, 1995 passed by Sub-Judge II, Patna in Misc. Case No. 3 of 1992 by which he has set aside the sale of the property belonging to the petitioners for realisation of cost on the ground of fraud. The appellate Court held that the application filed by the petitioners was filed beyond limitation and no fraud was committed in the sale of the property and accordingly allowed the appeals of the decree holders and auction purchaser.
2. The facts leading to the filing of the present application are that the decree holder/Opposite party 1st Set filed a suit for declaration of title and recovery of possession with regard to portion of land of plot Nos. 234 and 946, Circle No. 247, Ward No. 34 holding 238/233situate in Mauza Rajapur Hassan. P.S. Digha, District-Patna against the judgment-debtors/petitioners and their father Ram Pratap Singh. The said suit was decreed on 23-11-1986 by the trial Court and the appeal filed by the judgment-debtor was dismissed on 18-8-1988 and Second Appeal No. 515 of 1988 was also dismissed by this Court on 17-3-1989.
3. After passing of the decree by the trial Court, Execution Case No. 1 of 1987 was levied by the decree-holders/Opposite Party 1st Set for delivery of possession and realisation of the cost, total amount being Rs. 930.35 P. The delivery over the said property was effected on 17-3-1989 and D.P. was confirmed on 26-6-1989.
4. In the said Execution case itself the decree holders prayed for sale of two Kathas, 12 dhurs and 16 dhurki of land of Plot No. 234 for realisation of the costs and the details of the same were given in Schedule II of the Execution petition. On 24-9-1990 the Judgment-debtors/petitioners filed an application in execution for rateable distribution. On 26-2-1991 the decree-holders filed a petition for attachment of the property and sale for realisation of the cost. On 4-3-1991 the order of attachment was passed in presence of both the parties and the attachment was published on 7-3-1991. The petition filed by the judgment debtors for rateable distribution was rejected by the Court on 29-6-1991 and it was held that these petitioners were liable to pay 21 3rd of the cost but they do not want to pay the same and therefore, the execution proceeding should proceed ahead against the judgment- debtors/petitioners and their father for realisation of the cost of the suit. On 29-6-1991 the Court ordered for issuance of proclamation of sale and on 17-8-1991 the decree holders/opposite parties 1st Set appeared and made a prayer to the Court to participate in the auction sale as the sale proclamation has been served. The Executing Court allowed the prayer of the decree-holders to participate in the bid. The bid was held on few dates and the Opposite party Upendra Singh on 27-8-1991 offered the highest amount of Rs. 15,000 which was accepted. He deposited the sale amount on the next date i.e. on 28-8-1991 and on 30-9-191 the sale was confirmed. The petitioners deposited the cost on 7-2-1992 and on 17-2-1992 filed an application for setting aside the auction sale, labelling the petitioner u/s. 151 of the the Code of Civil Procedure (hereinafter referred to as the Code) and under Order XXI, Rule 90 of the Code. Their assertion in the petition was that at the time of auction sale no notice was served on them as they were minors and entire proceeding of attachment as well as auction sale was conducted bala-bala to keep them in dark and the property which includes a house situate in the town of Patna worth Rs. 5,00000 (five lacs) was sold only for 15,000. It was further stated that several other irregularities were occurred in conducting the sale proceeding which wiil be demonstrated at the time of hearing.
5. In the aforesaid Miscella
