Sudhir Kumar Katriar and Kishore K. Mandal, JJ.
1. The auction-purchaser has preferred this appeal in terms of Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the judgment dated 3.5.1994, passed by a learned single Judge in CWJC No. 3295 of 1987 (Murlidhar Shah and Ors. v. State of Bihar and Ors.), whereby the writ petition at the instance of the previous transferees has been allowed, their application under Section 28 of the Bihar & Orissa Public Demands Recovery Act 1914 (hereinafter referred to as 'the Act'), has been allowed, and the order dated 17.11.83, passed by the learned Certificate Officer, has been restored. We shall go by the description of the parties occurring in the writ proceeding.
2. A brief statement of facts essential for the disposal of the appeal may be indicated. Respondent No. 12 (Sadhusharan Yadav, respondent No. 13 herein) had obtained agricultural loan from the respondent Bank (Land Development Bank, Madhepura). He defaulted in payment of loan leading to certificate proceeding. The lands in question belonging to respondent No. 12 were auction sold for the purpose of satisfaction of the certificate dues, and were purchased by respondent No. 6 (Narayan Yadav, the appellant herein) on 15.6.83. The description of the lands as found in the certificate granted by the learned Certificate Officer is as follows:
Specification and Price of the properties
Mouza: Ghosai
Thana No. 105
Thana: Chousa
Dist. Madhipura
Touzi No.
Khata No.
Plot No.
Area B.K. dhurs
1397
2
62 )
12
64 )
25
67 )
1=3=12
33
72 )
17
68 )
357
37
66
0=14=11
1397
26
56
1=4=10
3=2=13
Mouza: Kanuari
Thana No. 131/1
P.S. Chousa
Dist. Madhipura
Touzi No.
Khata No.
Plot No.
Area A.D.
352
44
152
1=31Mouza: Ghosai
Thana: Chousa
Thana No. 105
Dist. MadhipuraTouzi No.
Khata No.
Plot No.
Area A.D.
1397
2
62 )
12
64 )
25
67 )
1=03
33
72 )
17
68 )
3306
1174
906
0=20
943
0=34
2=88Bid amount: 12,000.00
(Rupees Twelve thousand) only.
2.1 The writ petitioners, three in number (respondent Nos. 6, 6(a) and 7 herein) filed an application under Section 28 of the Act before the learned Certificate Officer, without depositing the requisite sum contemplated by Clauses (a) and (b) of Section 28 of the Act. It was stated therein that the lands in question had already been alienated by respondent No. 12 in favour of the writ petitioners (and other purchasers) between 1978 and 1983, and, therefore, the same could not have been auction sold. The application was filed on 15.7.83. The writ petitioners had thereafter filed an application for permission to deposit the amount which was allowed by order dated 5.9.83, which was deposited. We must at this stage indicate that a controversy arose before the authorities under the Act as well as before the writ court as to the date on which the amount was so deposited. The learned Member, Board of Revenue, recorded that the amount had been deposited on 28.9.83. This finding has been set aside by the learned writ court and it has been held that the amount had been deposited on 17.9.83.
2.2 On a consideration of the materials on record and the submissions of the parties before him, the learned Certificate Officer allowed the application of the writ petitioners, and set aside the auction sale. Aggrieved by this order, respondent Nos. 6, 6(a) and 7 preferred appeal in terms of Section 60 of the Act before the learned Collector of the district who set aside the order of the learned Certificate Officer and upheld the auction sale. The revision application in terms of Section 62 of the Act was rejected by the learned Divisional Commissioner by his order dated 31.3.86 (Annexure 2). The Board of Revenue in its turn dismissed the second revision application purported to have been preferred in terms of Section 62 of the Act. Aggrieved by the order of the learned Board of Revenue, the prior purchasers/objectors preferred the present CWJC No. 3295 of 1987 which has been allowed by the learned writ court. It has, inter alia, been held that the lands in question had been alienated in favour of the writ petitioners and others by registered deed of absolute sale whose interest was affected by the auction sale. It has further been held that the objectors were bonafide applicants, had filed an application in terms of Section 28 of the Act in time, and had deposited the amount contemplated by Clauses (a) and (b) of Section 28 beyond 30 days but after seeking permission of the learned Certificate Officer. After discussion of the narrow controversy as to the date of deposit, he has found that the amount had been deposited with the bank on 17.9.83, and thus allowed the claim/objection. Hence this appeal at the instance of the auction purchaser.
3. Learned Counsel for respondent No. 6 (the appellant herein) submits that the application in terms of Section 28 of the Act has to be filed along with the deposit contemplated therein within a period of thirty days. In his submission, therefore, the learned Certificate Officer has no authority to extend the time for deposit of the amount. The contention is reinforced by the terms of Section 31 of the Act. He relies on the following reported judgments:
(i) : [1968]1SCR455 (Tribhovan Das v. Ratilal)
(ii) AIR 1940 Patna 87 (Dhari Jena v. Gauranga Charan)
(iii) : AIR1972Pat55 (Matrani Devi v. Chhathu Prasad)
3.1 He next submits that even if there were power in the learned Certificate Officer to extend the time for deposit of the amount, it can be done only on the basis of a written application and after a case for extension is made out, which is absent in the present case.
3.2 He lastly submits that the auction sale had been confirmed, the certificate has been issued in favour of respondent No. 6, and he is in peaceful possession since then.
4. The respondent Bank as well as the private respondents have not entered appearance inspite of valid service of notice, and we do not have the benefit of their submissions. We have, however, heard learned Standing Counsel No. 16.
5. We have perused the materials on record and considered the submissions of the learned Counsel for the parties. Section 28 of the Act is relevant in the present context and is set out hereinbelow for the facility of quick reference:
28. Application to set aside sale of immovable property on deposit.- (1) Where immovable property has been sold in execution of a certificate, the certificate-debtor, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Certificate Officer to set aside the sale, on his depositing -
(a) for payment to the certificate-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of six and a quarter per centum per annum, calculated from the date of the sale to the date when the deposit is made;
(b) for payment to the purchaser, as penalty, a sum equal to ten percent of the purchase money, but not less than one rupee; and
(c) for payment to the Collector (where the certificate is for a public demand payable to the Collector), such outstanding charges due to the Government under any law for the time being in force as the Collector certifies to be payable by the certificate-debtor.
(2) Where a person makes an application under Section 29 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this Section.
6. The provisions of Order 21, Rule 89 of the Code of Civil Procedure are in identical terms (as Section 28 ) and is reproduced hereinbelow:
Order XXI
EXECUTION OF DECREES AND ORDERS
Payment under decree
Rule 89. Application to set aside sale on deposit.- (1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court,-
(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the day of such proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.
7. We must first of all deal with the submission advanced by learned Counsel for respondent No. 6 (the appellant herein) that there is no power in the learned Certificate Officer to extend the time for deposit of the amount contemplated by Sub-sections (a) and (b) of Section 28(1). The admitted position is that an application in terms of Section 28(1) of the Act was filed within the time prescribed thereunder. We are of the view that the provision of Section 28 of the Act and Order 21, Rule 89 of the Code, are in identical terms. While interpreting the provisions of Order 21, Rule 89, it has been held in various judgments that the Court has the requisite power to extend the time to deposit the sum.
8. The provisions of Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act 1982, are also relevant in the present context. The earlier line of cases with respect to interpretation of Section 15 was to the effect that if the direction for deposit of arrears of rent and the current rent was not complied within the time prescribed by Section 15, then the defence against ejectment in the suit automatically stood struck off. The Supreme Court has modified the view and has in its later judgments held that such an interpretation of the provisions of Section 15 of the Act may operate harshly against the tenant for circumstances beyond his control. For example, a tenant may meet with an accident on his way to deposit the rent and may be hospitalized preventing him from depositing the amount in time, or his pocket may be picked up and may similarly be deprived of the opportunity to deposit it in time. The Supreme Court has, therefore, held that the court can in appropriate cases extend the time to deposit the rent.
9. Reference may also be made to the provision of Section 3 of the Limitation Act which lays down to the effect that the provision for condonation of delay is not available in filing a suit. It has to be filed within the time prescribed by law. Suppose a plaint were filed within time, then the courts have adequate power to grant time to the plaintiff to remove the defects including deposit of deficit court fee.
10. Learned Counsel for the auction-purchaser (the appellant herein) submits that Sub-section (2) of Section 3 is a clear indication in the Statute that the amount has to be deposited within 30 days from the date of the sale. Section 31 reads as follows:
31. Sale when to become absolute or be set aside. - (1) Where no application is made under Section 28, Section 29 or Section 30 or where such an application is made and disallowed, the Certificate Officer shall make an order confirming the sale and thereupon the sale shall, subject to the provisions of Sub-section (2) of Section 29 become absolute.
(2) Where such an application is made and allowed, and where in the case of an application under Section 28, the deposit required by that Section is made within thirty days from the date of the sale, the Certificate Officer shall make an order setting the sale:
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
11. The contention on the face of it appears to be attractive but we are unable to accede to the submission on reflection. The emphasis of Sub-section (2) of Section 31 is on setting aside of the sale. In so far as the reference to the deposit is concerned, the same is in aid of, and subservient to, Section 28 of the Act. We are of the view that if power to extend the time for the deposit were not to be found with the Certificate Officer, then it may operate very harshly against the objectors, in a situation like the present one where the main application was filed within time. Secondly, the applicant may not be in a position to deposit the amount for various reasons and circumstances beyond his control. The judgments of the Supreme Court with respect to identical provisions of law are to the effect that courts have always retained the power to remove such defects unless prohibited by the terms of the statute in clear terms or by necessary intendment.
12. We agree with that part of the discussion in the judgment of the learned writ court that once the application is filed in time, the court shall entertain the application only after he is of the view that it is a bonafide application and the amount has been deposited. Deposit of the amount is by itself an important circumstance to show that it is a bonafide application. Furthermore, it has been held that the application shall be entertained only after the amount has been deposited, may be within the time extended by the court. In other words, we agree with the conclusion of the learned writ court that such a power is to be found in the Certificate Officer in terms of Section 28 of the Act to extend the time to deposit the amount.
13. We must now deal with the judgment relied on by learned Counsel for the auction-purchaser (the appellant). Learned Counsel particularly relied on the following portion of the judgment in Tribhovandas (supra):
Rule 89 requires that two primary conditions relating to deposit must be fulfilled: the applicant must deposit in the Court for payment to the auction purchaser 5 per cent of the purchase-money; he must also deposit the amount specified in the proclamation of sale less any amount received by the decree-holder. In the present case, the trustees of the trust had deposited Rs. 250/- for payment to the auction purchaser. They also deposited Rs. 63 for payment to the decree-holder, but it is common ground that the claim of the mortgagee was not satisfied by that deposit. The first condition was, therefore, fulfilled, but the second condition of Order 21, Rule 89 was not fulfilled.
14. That was a case under the Bombay Public Trusts Act wherein the provisions of Order 21, Rule 89 were considered. It is in this context that the Supreme Court made the aforesaid observation. We do not see the relevance of the same in the present case for the reason that the primary question for consideration in the present case is whether or not the court/Authority under the Act has the power to extend the time for deposit. The position would have been fundamentally different and perhaps the judgment could have been applicable in the present case, if the writ petitioners had not deposited the amount at all, which is not the case here. The judgment is not applicable to the facts and circumstances of the present case.
15. Learned Counsel for the auction-purchaser (appellant) has also relied on the judgment of a Division Bench of this Court in Dhari Jena (supra). That was a case under the provisions of Order 21, Rule 89 of the Code. It appears that the party concerned had deposited the requisite amount but had not filed the requisite application. Therefore, the Court held that, in the absence of an application to set aside the sale, the same cannot be set aside even if decretal amount and compensation had been deposited in the Court. This judgment dealt with a fundamentally different issue, and does not deal with the issue in hand.
16. The judgment of this Court in Smt. Matrani Devi (supra) was rendered by a learned single Judge of this Court wherein it has been held that, where a judgment-debtor applying for setting aside a sale under Order 21, Rule 89, has failed to deposit the amount within the time prescribed by Article 127 Limitation Act (1963), the Court has no power to extend the time either under Section 148 or Section 151 of the Code. The judgment is not relevant in the present context.
17. We must deal with the second submission advanced on behalf of the auction-purchaser. There cannot be quarrel with the proposition that, in order to seek condonation of delay, there has to be a written application and a case has to be made out for condonation. The contention has to be rejected in view of the findings recorded by the learned Certificate Officer the relevant portion of which is set out hereinbelow:
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18. It is thus manifest that the writ petitioners had approached (filed an appropriate application) before the learned Certificate Officer seeking that he may be permitted to deposit the amount in question, which was allowed by order dated 5.9.83, meaning thereby that the time to deposit the amount in question was extended. We have already held hereinabove that such a power to extend time is found in the learned Certificate Officer. In so far as the second aspect of this contention is concerned, the question on the facts of this case whether or not it was a fit case for extension of time is basically an exercise of judicial discretion, no circumstance has been brought to our notice that the judicial discretion was exercised erroneously or capriciously. The contention is rejected.
19. We must now deal with the last contention advanced on behalf of the auction-purchaser (the appellant) that he is in possession of the certificate of confirmation, and is in peaceful possession for a fairly long time. We are not going into the veracity of this statement. This is at best an equitable consideration and cannot be permitted to override the express provision of law. Once we have found that the Certificate Officer had the power to extend the time for deposit, which was indeed extended on an appropriate prayer made on behalf of the writ petitioners, and on application of the judicial mind, it would be capricious exercise of power to give overriding effect to equitable considerations.
20. In the result, we do not find any merit in this appeal.
21. It is accordingly dismissed. There shall be, however, no order as to costs.