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IN THE HIGH COURT OF ALLAHABAD
Brij Mohan Lall, J.
KRISHNA KUMAR - Appellant
Versus
BRIJBASI LAL - Respondents
Second Appeal 1378 Of 1946
Decided On : 07/26/1950
EXECUTION OF DECREE - SALE - STAY OF SALE - TENDER OF AMOUNT - ORDER 21, RULE 69 (3), CIVIL P. C. - INTERPRETATION - AMOUNT DUE TO CLAIMANT FOR RATEABLE DISTRIBUTION - WHETHER TO BE INCLUDED - SALE PROCLAMATION - MENTION OF AMOUNT DUE UNDER DECREE ONLY - WHETHER SUFFICIENT - OBJECTION TO SALE - WHETHER UNDER ORDER 21, RULE 90 OR SECTION 47, CIVIL P. C. - DISTINCTION - APPEAL - SECOND APPEAL - WHETHER LIES.
Fact of the Case:
Judgment-debtors appealed against an appellate decree upholding the sale of a property in execution of a decree. The sale was challenged on the ground that the amount tendered by them before the sale was sufficient to stay the sale under Order 21, Rule 69 (3), Civil P. C., and that the sale was, therefore, a nullity. The judgment-debtors also contended that the house sold was owned by one of them, Smt. Javitri, and that it was not attachable and saleable.
Finding of the Court:
The court held that the amount tendered by the judgment-debtors was insufficient as it did not include the amount due to a claimant for rateable distribution whose claim had been accepted by the court. The court also held that the sale was not a nullity as the court had jurisdiction to sell the property even if it was wrong in its conclusion that a higher amount was due from the judgment-debtors. The court further held that the objection to the sale was under Order 21, Rule 90, Civil P. C., and not under Section 47, Civil P. C., and that, therefore, no second appeal lay.
Issues: 1. Whether the amount tendered by the judgment-debtors was sufficient to stay the sale under Order 21, Rule 69 (3), Civil P. C.? 2. Whether the sale was a nullity? 3. Whether the objection to the sale was under Order 21, Rule 90, Civil P. C., or under Section 47, Civil P. C.? 4. Whether a second appeal lay in the case?
Ratio Decidendi: 1. The expression "debt and costs" in Order 21, Rule 69 (3), Civil P. C., means the debt and costs recoverable in the execution proceedings, including the amount due to a claimant for rateable distribution whose claim has been accepted by the court. 2. A sale in execution of a decree is not a nullity merely because the court was wrong in its conclusion that a higher amount was due from the judgment-debtors. The sale is only voidable and can be set aside on an application under Order 21, Rule 90, Civil P. C. 3. An objection to a sale in execution of a decree is under Order 21, Rule 90, Civil P. C., if it is based on an irregularity, and under Section 47, Civil P. C., if it is based on the ground that the sale is a nullity. 4. No second appeal lies against an order passed on an objection to a sale in execution of a decree under Order 21, Rule 90, Civil P. C.
Final Decision: The appeal of the judgment-debtors was dismissed. The appeal of Smt. Javitri was allowed and the case was remanded to the trial court for a decision on merits.
( 1 ) THIS is a second appeal by the judgment-debtors against an appellate decree of the learned district Judge of Farrukhabad.
( 2 ) IT appears that firm Banarsi Das Durga Prasad (hereafter described as decree-holders) obtained in 1932 a decree against the following two sets of defendants, namely-- (1) Ram Ratan and his brothers and (2) Krishna Kumar, Murli Manohar and their aunt, Shrimati Javitri.
( 3 ) ON 31-10-1936, Ram Ratan and his brothers made an application under Section 4, encumbered Estates Act. Krishna Kumar and Murli Manohar were impleaded as parties to those proceedings. For reasons, which do not appear on the record, Shrimati Javitri was not impleaded as a co-debtor. On 25-8-1943 the Special Judge apportioned among the debtors the debt due to the decree holders. Sam Eatan and his brothers were found liable to pay a half share of the decretal amount and Krishna Kumar Murli Manohar were held liable to pay the remaining half. Since Shrimati Javitri was not a party to those proceedings, she was not saddled with liability to pay any portion of the decretal amount.
( 4 ) AN execution application had been presented by the decree holders against Krishna Kumar, murli Manohar and Shrimati Javitri but it had been shelved because of the pendency of the proceedings before the Special Judge. After the apportionment of the liability by the learned special Judge the aforesaid execution application was revived. A certain house was attached and proclaimed for sale. The sale was to take place on 12-4-1945. It was, however, adjourned on 15-7-1945. Meanwhile two other creditors put in applications for rateable distribution. The claim of one-of them to seek rateable distribution was rejected by the execution Court, but the right of the other creditor, namely, firm Earn Eatan Shyam Manohar was upheld. An intimation was sent to the amin and a note was made on the back of the sale warrant to the effect that the amount of the sale proceeds should be recovered in cash because the claim of firm Ram Ratan Shyam manohar for rateable distribution had been entertained by the Court. It may, however, be pointed out that this endorsement on the sale certificate does not indicate what was the exact amount due to firm Earn Eatan Shyam Manohar.
( 5 ) THE sale fixed for 15-7-45 was further adjourned till 27-7-1945. As the adjournment was for a period of less than fourteen days, no fresh proclamation was issued. On 28-7-1945 the amin started the auction proceedings. At that stage, the judgment debtors (appellants) tendered to him a sum of Rs. 2,898 3-6 which was the amount mentioned in the sale proclamation. The sale proclamation contained a statement that the property sought to be sold had an encumbrance of rs. 16,000 and old. The decree-holders contended before the amin that the sale should not be stayed unless the amount of the encumbrance was also paid in cash. The amin referred the matter to the Court and the Court passed an order stating that since there was an application for rateable distribution, the sale could not be stayed on payment of the sum of Rs. 2,898-3-6 which represented the decree-holders claim only. On receipt of this order, the amin completed the sale. Brij Basi Lal (respon-det 1) purchased the property.
( 6 ) THE appellants (judgment-debtors) presented a petition of objection before the execution court. They raised several points, but the only one which is material now and which is pressed by their learned counsel is that in view of the provisions of Order 21, Rule 69 (3), the amin was bound to stay the sale when a sum of Rs. 2898-3-6 was tendered to him. According to his contention, no sale should have taken place. On that ground, the appellants sought the setting aside of the sale. This petition Of objection was stated by them to have been filed under Order 31, Rule 90, Civil P. C.
( 7 ) ANOTHER petition of objection had been filed several months earlier, that is, on 20. 3-1945 by shrimati Javitri. Her conte
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