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HIGH COURT OF ORISSA
G. K. Misra, J.
GANJA SATYAVATAMMA - Appellant
Versus
NIMA CHITI APPAVYAMMA - Respondent
M. A. 51 Of 1962
Decided On : OCTOBER 07, 1963
EXECUTION OF DECREE - SALE OF PROPERTY - ORDER OF SALE - VIOLATION - MATERIAL IRREGULARITY - SETTING ASIDE OF SALE - LIMITATION - ORDER 21, RULE 90, C. P. C. - ORISSA AMENDMENT.
Fact of the Case:
The appellant, the daughter of the deceased judgment debtor, challenged the validity of the sale of a property in Jeypore, which was sold in execution of a decree. The appellant contended that the sale was conducted in violation of an order passed by the District Judge, which directed that the secured property be sold first and the attached property be sold only if the decretal dues were not satisfied by the sale of the secured property. The appellant filed an application under Section 47, C. P. C. to set aside the sale, which was dismissed by the trial court.
Finding of the Court:
The court held that the sale of the Jeypore property in violation of the District Judge's order was a material irregularity in conducting the sale. The court further held that the appellant's objection to the sale should have been raised before the sale was effected under Order 21, Rule 90, C. P. C. The court also held that the irregularity committed directly came within the purview of Order 21, Rule 90 and could not be canvassed under Section 47, C. P. C. The court further held that the application filed by the appellant under Order 21, Rule 90 was barred by limitation.
Issues: 1. Whether the sale of the Jeypore property in violation of the District Judge's order was a material irregularity in conducting the sale? 2. Whether the appellant's objection to the sale should have been raised before the sale was effected under Order 21, Rule 90, C. P. C.? 3. Whether the irregularity committed directly came within the purview of Order 21, Rule 90 and could not be canvassed under Section 47, C. P. C.? 4. Whether the application filed by the appellant under Order 21, Rule 90 was barred by limitation?
Ratio Decidendi: 1. The court held that the sale of the Jeypore property in violation of the District Judge's order was a material irregularity in conducting the sale because it was not in conformity with the rules prescribed for regulating execution sale and the irregularity in the procedure to be followed before property is put up for sale. 2. The court held that the appellant's objection to the sale should have been raised before the sale was effected under Order 21, Rule 90, C. P. C. because the rule provides that an application to set aside the sale lies on the ground of a material irregularity or fraud in publishing or conducting it. 3. The court held that the irregularity committed directly came within the purview of Order 21, Rule 90 and could not be canvassed under Section 47, C. P. C. because the rule specifically deals with the setting aside of sales in execution of a decree on the ground of material irregularity or fraud. 4. The court held that the application filed by the appellant under Order 21, Rule 90 was barred by limitation because the rule provides that an application to set aside the sale must be made within thirty days from the date of sale.
Final Decision: The court dismissed the appeal and held that the sale of the Jeypore property was not void but voidable and could have been set aside only in a proceeding under Order 21, Rule 90, C. P. C. The court also held that the application filed by the appellant was barred by limitation.
G. K. MISRA, J.
( 1 ) THE appellant is the daughter and one of the legal representatives of the deceased third dfendant against whom, the decree-holder had decretal dues of more than Rs. 15,000/-Two sets of properties were put to sale. Six houses at nowrangpur were sold for Rs. 14,250/ -. This property was given by way of security. The property, which is the subject-matter of this appeal, is situate at jeypore. All the properties were put to sale on 21-9-1961. The bid for Newrangpur property came up to Rs. 9000/ -. As the upset price for this property had been fixed at Rs. 15,000/, the bid was not accepted and the sale was adjourned. The bid in respect of Jeypore property was, however, accepted. Item-was sold for Rs. 400/- and item 2 for Rs. 5100/ -. The sale in respect of item-2 was set aside on 23-9-1961. The appellant filed an application on 26-10-1961 questioning the validity of the sale of the Jeypore property on the ground that on 1-11-1960, with the consent of the decree-holder and the judgment-debtors, the District Judge passed an order to the following effect :
"as the decree-holder has no objection to the prayer of the petitioner for sale of the secured properties in the first instance, the petition is allowed with the consent of both the parties and it is ordered that the secured property would be brought to sale in the first instance and that the attached property would be liable to be sold subsequently if the decretal dues are not satisfied by the sale of the secured property. "
It may be made clear that the secured properties refer to those at Nowrangpur and the attached properties refer to those situate at Jeypore. From the statements of facts already made it would be clear that both classes of properties were put to sale on 21-9-1961. Putting both the properties to sale on the same day was itself in violation of the order passed by the Court on 1-1-1960. There was a further violation when the bid in respect of Jeypore property was accepted on 21-9-61 while the sale of Nowrangpur property was deferred to a subsequent date, the bid price not having come up to the upset price fixed by the Court. The upshot of the order in which the sale took place was dereliction of the order of the Court passed on 1-11-1960. The result was that, though the Court had directed that the secured property would be first brought to sale and that if the decretal dues were not satisfied by the sale of the secured property then the attached property would be sold, in fact, the sale took place in the reverse order. The appellant took objection to the order of sale 30 days after. This objection was overruled by the learned Subordinate Judge, Jeypore on 3-5-1962. Against this order the appeal has been filed.
( 2 ) MR. P. V. B Rao contends that the Nowrangpur property was sold by lots on 2112-1961 for Rs. 14,250/- and the balance decretal dues would come to about Rs. 1800/- and that if Jeypore property had not been sold earlier contrary to the direction given by the learned District Judge on 1-11-1960, the appellant could have deposited the balance Rs. 1800/- in cash and would have protected the jeypore property from sale. The sale of the Jeypore property being contrary to the direction of the Court is a nullity and must be set aside under Section 47, C. P. C.
( 3 ) THE following points arise for consideration :
(i) Was there any violation of the direction given by the learned District judge on 1-11-60 as to the order in which the different properties would be sold? (ii) Does the objection raised by the appellant come within the scope of order 21, Rule 90, C. P. C. , and, if so, is the application barred by tune ? and (iii) Is the sale of Jeypore property without jurisdiction and a nullity, or is it merely void-able?
( 4 ) FROM the narration of facts already made there is no escape from the conclusion that the sale of the attached property on 21-9-1961 and that of secured property on 21-12-1961 were in clear violation of the direction given b
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