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1999 Supreme(All) 825
IN THE HIGH COURT OF ALLAHABAD
A. K. YOG
BALI RAM - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 9717 Of 1983
Decided On : 05/26/1999
ANIL SHARMA, S.C.BUDHWAR
A property sold in execution of a money decree is free from all previous attachments and the Government dues cannot be realized from the auction purchaser.
Headnote:
AUCTION SALE - ATTACHMENT - ORDER 21, RULES 52 (I), 54 (2), 58, 59, 66, 67, 89, 90 (1) (3) AND 92, CODE OF CIVIL PROCEDURE - INTERPRETATION - PROPERTY SOLD IN EXECUTION OF MONEY DECREE - ATTACHMENT SUBSISTING ON THE PROPERTY WILL FALL TO THE GROUND - CLAIM OF GOVERNMENT DUES - RECOVERY FROM AUCTION PURCHASER - NOT PERMITTED.
Fact of the Case:
Petitioner purchased a property in an auction sale conducted by the Civil Court in execution proceedings. The property was previously attached by the Revenue Authorities for the recovery of Government dues against the judgment-debtor. The petitioner filed an objection under Order 21, Rule 58, C. P. C., claiming that the property was free from attachment and should be released. The objection was rejected by the Sub-Divisional Officer and the Additional Commissioner.
Finding of the Court:
The court held that the attachment orders passed by the Revenue Authorities had lost efficacy and the Government dues could not be realized from the property now in the hands of the petitioner. The court relied on the provisions of Order 21, Rules 52 (i), 54 (2), 58, 59, 66, 67, 89, 90 (1) (3) and 92, Code of Civil Procedure, and the Supreme Court judgments in Union of India v. M/s. Somasundram Mills (P) Ltd. and Kotak and Co v. State of U. P.
Issues: Whether the attachment orders passed by the Revenue Authorities were valid and enforceable against the petitioner.
Ratio Decidendi: The court held that the attachment orders passed by the Revenue Authorities were not valid and enforceable against the petitioner because the property had been sold in execution of a money decree and all previous attachments effected upon the property sold fell to the ground.
Final Decision: The court allowed the writ petition and set aside the impugned orders passed by the Sub-Divisional Officer and the Additional Commissioner.
( 1 ) BALI Ram (petitioner) has challenged orders dated 12/11/1982 and 20/07/1983 (Annexures 5 and 6 to the writ petition) passed by the Sub-Divisional Officer, Najibabad, District Bijnor and the Additional Commissioner (Administration), Moradabad, Division Moradabad (respondent Nos. 2 and 3) respectively. Consequently, the objection of the petitioner for releasing certain property attached vide order dated 6-2-82 passed by Sub-Divisional Officer, Najibabad has been rejected.
( 2 ) BRIEFLY stated, one Amrit Singh filed suit No. 187/76 in the Court of Civil Judge, Bijnor against Kadir Hussain for recovery of certain amount due under a promissory note. This suit was decreed on 9/03/1977. In execution case No. 35/81, executing Court got attached 1/3rd share of plot No. 109 (total Area-5 Bigha 6 Biswas 19 Biswasis) situate in village Daryapur, Tehsil Najibabad, District Bijnor.
( 3 ) AMIN submitted report of attachment dated 16/01/1981 (Annexure 1 to the writ petition ). The executing Court, placed the attached property to auction sale. On 16/04/1982, one Bali Ram (the present petitioner) purchased the same. Civil Court confirmed this auction sale on 25/05/1982. Sale certificate was duly issued by the Civil Judge vide sale certificate dated 2/07/1982 (Annexure-2 to the writ petition) was issued.
( 4 ) IT appears that there were certain dues towards sale tax and purchase tax against Kadir Hussain and some others who carried on business of manufacturing Khandsari in the name style of abdul Qadir Hussain. In view of these dues, concerned authorities appear to have taken steps for realising the same. Consequently Sub-Divisional Officer, Naziabad (respondent No. 2) issued an order dated 6-2-82 and attached the property belonging to the said Abdul Qadir Hussain. Copy of attachment order dated 6-2-82 passed by Sub-Divisional Officer has not been brought on record by either of the parties.
( 5 ) IN pursuance of the aforesaid attachment order dated 6-2-82, property was put to auction by the Revenue Authorities on the date fixed for auction i. e. 26/03/1982. Petitioner and other persons present participated in the said auction on 26/03/1982 and submitted a written application requesting the authorities to specify and identify the property which was subject-matter of auction. Auction was postponed to June, 1982.
( 6 ) BEFORE the adjourned date of auction (namely i. e. 1-6-82) petitioner filed objection dated 31-5-82 (Annexure-4 to the writ petition) and for the first time, he referred to the execution case No. 35/1980 and to the attachment as well as auction sale conducted by the civil Court.
( 7 ) THE petitioner in his said objections (Annexure to the writ petition) contended and prayed that objections be allowed and property be released from attachment on the ground that he had already purchased the said property in execution proceedings referred to above and that Abdul Qadir, aforesaid, had no right in the said property.
( 8 ) THE said objection under Order 21, R. 58, C. P. C. , filed by the petitioner on 31-5-82 (Annexure 4 to the writ petition) has been rejected by Sub-Divisional Officer Najibabad vide impugned order dated 12/11/1982 (Annexure 5 to the writ petition ). Feeling aggrieved, Bali Ram (petitioner) filed Revision No. 13/1982-83, u/s. 333, U. P. Zamindari Abolition Act and it was dismissed vide impugned order dated 20/07/1983 (Annexure-6 to the writ petition ). Respondents 2 and 3 (S. D. O. and Additional Commissioner, respondent Nos. 2 and No. 3) decided against Bali Ram on the ground that from the record according to them, it was established that Bali Ram, who purports to have purchased the property in question in an auction sale conducted by Civil Court in execution proceedings, was fully aware that Abdul Qadir Hussain (J. D.) was liable to pay Government dues which resulted in the attachment of the property in question and hence the Auction Purchaser (Bali Ram) became liable to discharge the said liability si
