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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Mansoor Ahmad Mir, Tarlok Singh Chauhan, JJ.
M/s United Electronics (India) Ltd. and another - Appellants
Versus
Ajay Kumar and others - Respondents
OSA No. 8 of 2015
Decided On : 08-11-2016
EXECUTION OF DECREE - SALE - CONFIRMATION - APPEAL - MAINTAINABILITY - ORDER CONFIRMING SALE - NOT APPEALABLE - ORDER 21 RULE 92 CPC - ORDER 43 RULE 1(J) CPC - WAIVER - ESTOPPEL - MATERIAL IRREGULARITY - INADEQUACY OF PRICE.
Fact of the Case:
The Judgment Debtors-Company moved OMP No. 4266 of 2013 under Order 21 Rules 58 and 59 CPC read with Section 151 CPC on 18th August, 2009, for settling the process of auctioning the property afresh. The learned Single Judge, vide order, dated 25th August, 2009, passed in OMP No. 413 of 2009 (supra), ordered that sale of proclamation would disclose the value of the property as assessed by the Decree Holder and details of all encumbrances attached thereto. It was also provided that the sale would be subject to confirmation by the Court. The Decree Holder-HPSIDC filed reply to the said application, i.e. OMP No. 413 of 2009, on 2nd September, 2009. Rejoinder thereto came to be field on 9th October, 2009. The application was disposed of vide order, dated 22nd October, 2009, by providing that no further orders were required to be passed in view of order, dated 25th August, 2009.
Finding of the Court:
The sale of property on low price in view of the fact that the Decree Holder and the Judgment Debtors failed to bring a best buyer, who would have paid the amount more than what the highest auction purchaser had paid, despite granting several opportunities, cannot be said to be a material irregularity and the objections raised by way of OMP No. 4266 of 2013, which too was virtually not pressed by seeking adjournment for settlement and obtaining best buyer, are of no consequence.
Issues: Whether the appeal is maintainable?
Ratio Decidendi: 1. Order 21 Rule 92 CPC mandates that when the application is not made under Rules 89, 90 or 91 CPC or when such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale becomes absolute. 2. The Judgment Debtors have not questioned the orders made by the learned Single Judge on the applications moved by the Decree Holder-HPSIDC, the details of which are given hereinabove, thus, cannot now question the process of attachment and auction of the property. 3. OMP No. 4266 of 2013 filed by the Judgment Debtors, are, in fact, objections to the sale, but the same have not been pressed by them by seeking adjournment for settlement and obtaining best buyer, i.e. a buyer, who would be ready to pay the price over and above the amount paid by the auction purchaser, is suggestive of the fact that the Judgment Debtors have not questioned the process of attachment or sale/auction on any grounds contained in Order 21 Rule 90 CPC or any other Rule. 4. Thus, the Judgment Debtors are precluded from questioning the impugned orders. 5. Order, dated 27th March, 2015 (impugned order-I) is only an order of confirmation of sale. This order nowhere discloses that any application was made and it was disallowed, thus, the same does not fall within the scope and ambit of Order 21 Rule 92 CPC and is not appealable. 6. Order, dated 27th July, 2015 (impugned order-III), in terms of which OMP No. 156 of 2015 came to be dismissed, is not an order of review. No review petition was filed. The application was filed under Section 151 CPC for recalling orders, dated 27th March, 2015 and 28th April, 2015.
Final Decision: The appeal, on the face of it, is not maintainable. Even otherwise, on merits also, as discussed hereinabove, the appeal deserves to be dismissed and is dismissed accordingly alongwith all pending applications.
Mansoor Ahmad Mir, J.
This appeal is directed against orders, dated 27th March, 2015, 28th April, 2015, and 27th July, 2015, passed by the learned Single Judge in Execution Petition No. 1 of 2005, tilted as H.P. State Industrial Development Corporation versus M/s United Electronics (India) Ltd. and others (for short “the impugned orders”).
2. At the very outset, we deem it proper to record herein that the appellants have filed this appeal while invoking the jurisdiction of this Court in terms of Order 43 Rule 1(j) of the Code of Civil Procedure (for short “CPC”) and is not an appeal as per the mandate of Section 96 of the CPC, as recorded in the cause title.
3. Learned counsel for the parties argued the case at length.
4. It is profitable to give a brief resume of the facts of the case, which have given birth to the instant appeal.
5. Decree Holder Himachal Pradesh State Industrial Development Corporation (for short “HPSIDC”) earned decree in Civil Suit No. 8 of 1999, titled as Himachal Pradesh State Industrial Development Corporation Limited versus M/s United Electronics (India) Ltd. and others, was constrained to file Execution Petition in the year 2004, i.e. on 31st December, 2004. Notice was issued on 4th January, 2005, remained on the dockets of the Court without service and ultimately OMP No. 138 of 2008 was filed by the Decree Holder-HPSIDC on 9th April, 2008 for attachment of the immovable property of Judgment Debtor No. 1, i.e. M/s United Electronics (India) Ltd. (for short “Company”), as described in para 3 of the said application. Thereafter, another application, being OMP No. 451 of 2008, was filed by the Decree Holder-HPSIDC under Order 21 Rule 54 read with Section 151 CPC. Warrant of attachment was ordered to be issued vide order dated 17th September, 2008.
6. OMP No. 315 of 2009 came to be filed by the Decree Holder-HPSIDC under Order 21 Rules 66 and 67 CPC read with Section 151 CPC on 9th July, 2009, for issuing advertisement qua sale of the attached property. The learned Single Judge directed to issue the proclamation vide order, dated 15th July, 2009.
7. The Judgment Debtor-Company moved OMP No. 413 of 2009 under Order 21 Rules 58 and 59 CPC read with Section 151 CPC on 18th August, 2009, for settling the process of auctioning the property afresh. It is apt to reproduce the relief sought for in the said application herein:-
“That it would be in the interest of justice and fairness of law to allow the present application and settle the process of auctioning of the property afresh so that the Judgment Debtor is able to once and for all settle the alleged dues of the HPFC and PNB the other two secured creditors.”
8. The learned Single Judge, vide order, dated 25th August, 2009, passed in OMP No. 413 of 2009 (supra), ordered that sale of proclamation would disclose the value of the property as assessed by the Decree Holder and details of all encumbrances attached thereto. It was also provided that the sale would be subject to confirmation by the Court.
9. The Decree Holder-HPSIDC filed reply to the said application, i.e. OMP No. 413 of 2009, on 2nd September, 2009. Rejoinder thereto came to be field on 9th October, 2009. The application was disposed of vide order, dated 22nd October, 2009, by providing that no further orders were required to be passed in view of order, dated 25th August, 2009.
10. On 8th July, 2011, the Decree Holder-HPSIDC moved OMP No. 241 of 2011 seeking permission of the Court to carry out fresh evaluation of the assets, which was allowed by the learned Single Judge on 23rd August, 2011, and a direction was issued to the Decree Holder-HPSIDC to carry out fresh evaluation of the movable and immovable property. Fresh valuation report was ordered to be taken on record vide order, dated 19th October, 2011 in OMP No. 373 of 2011, with a further direction to sell the attached property by way of public auction after drawing the proclamation of sale. The Collector, Solan, was directed to ensure that a
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