ORDER
Kulkarni, J.
1. This is a revision by the petitioner against the order dated 24-3-1986 passed by the Principal Munsiff, Arsikere, in Misc. 1 of 1986, dismissing the same.
2. The respondent filed a suit for recovery of money against the petitioner in O.S.No. 175/76 on the file of the Principal Munsiff, Arsikere, and had obtained a decree. The respondent sued out Execution in E.P.No. 133/77 for recovering the said decretal amount. He got attached the petitioner's properties. The properties were directed to be sold on 28/29-7-1978. The sale on the spot was held on 28-7-1978. The Court appeared to have made a note on 29-7-1978 that the bid was accepted. The revision petitioner filed an application LA. II on 29-7-1978 under Order 21 Rule 90 of the C.P.C. That was dismissed. M. A. No. 59/ 1979 filed by him against the said order of dismissal of the Application I. A. II under Order 21 Rule 90 of the C.P.C. was also dismissed on 14-3-1980. He approached this Court with C.R.P. 2760/80 and it was also dismissed on 28-3-1984.
3. The sale was confirmed on 6-1-1979. The respondent filed an application in Misc. 28/1983 under Order 21 Rule 95 of the C.P.C. for delivery of sold property. The petitioner after he was served with the notice of Misc. 28/83 filed the present application Misc. 1/1986 on 1-1-1986 alleging that no sale was held in the Court at all and that there was no bid offered by the decree-holder or any one in the Court and thus Rule 138 of the Karnataka Civil Rules of Practice, 1967 is violated and that the same is null and void, and sought for setting aside the sale.
4. It was resisted by the respondent.
5. The trial Court dismissed the revision petitioner's application under Section 47 of C.P.C. Hence, the revision.
6. The trial Court has extracted the order in Execution Case No. 133/77 passed on 29-7-1978 and 6-1-79, thus :
'29-7-78 : D.Hr. bySri R.C.G.
J.Dr. by Sri O.M.A.
Sale warrant executedand returned item No. 2 bid and purchased by D.Hr. S. Nanjundappa for Rs.6250/- and D.A. set-off, sale list enclosed herewith.
Sri O.M.A. filesapplication under Order 21 Rule 90 CPC with affidavit and J. Dr. at I.A. IIobjn. to I.A.II Bid accepted, objn. to I.A. II and confirmation by 2/9.
6-1-79 : D.Hr. by Sri R.C.B.
J.Dr. is not present, noevidence is adduced on I.A.II Hence I.A. II is rejected. Sale confirmed. E.F. S. and closed.'
J.Dr. by Sri O.M.A.
Evi. on I.A.II.
7. Rule 138 of the Karnataka Civil Rules of Practice reads thus :
'Sale of immovable property shall ordinarily take place at the spot, subject to the condition that the final bid shall be offered before the presiding officer at the Court house.'
Rule 138 came up for interpretation before this Court in Krishnappa K.P. v. B Gangappa by Lrs. & Ors., 1982 (1) KLJ 356. In para-6 of the said decision, this Court has held as :
'In this case, the proclamation of sale also does not state that the final bid shall take place on 29-11-1971 before the Presiding Officer at the Court House. Rule 138 of the Rules referred to above is mandatory. It is intended to safeguard the interest of the judgment debtor whose immovable property is brought for sale. It is also intended to eliminate all possible malpractices which are likely to be adopted so as to knock down the property put up for sale by public auction at lower price. If the final bid is offered before the Presiding Officer at the Court House, even those persons who could not offer their bids at the spot for some reason or the other, will be able to offer their bids before the Presiding Officer of the Court at the Court House. There is solemnity attached to the proceeding before the Court and it is open for all those who are interested in purchasing the property put up for sale, to offer their bids. Thus, the conduct of final bid before the Presiding Officer at the Court House ensured not only the proper conduct of the sale in a free and solemn atmosphere, but it also enable to secure proper value to the property put up for sale. That being the object of the aforesaid Rule, the sale has to be conducted in accordance with the said Rule. Failure to conduct the sale in accordance with the aforesaid Rule, vitiates the sale proceedings. If the final bid is not offered before the Presiding Officer at the Court House, the auction sale of the immovable property is not complete. For the auction sale of the immovable property to be complete, the final bid must be offered before, and must be accepted by, the Presiding Officer at the Court House. In the instant case, the final bid has not been offered before the Presiding Officer at the Court House. Therefore, there is no sale held in accordance with Rule 138 of the Rules, Hence, the question of confirmation of such a sale which is not complete does Hot arise. That being the position, merely because the judgment debtor (petitioner), under an erroneous impression that the sale has taken place, has filed an application for setting aside the sale and during the course of enquiry of that application, he remains absent and fails to deposit the balance of the decretal amount and the solatium as ordered, does not enable the Court to confirm the sale which is not complete.'
8. Thus, it becomes obvious that this Court has taken a clear view that Rule 138 is a mandatory provision and non-compliance with the same would result in no sale at all. Thus, any sale held in contravention of Rule 138 is no sale in the eye of law.
9. I have extracted above the proceedings of the Court dated 29-7-1978 in Execution Case No 133/77. The order sheet dated 29-7-1978 does not show that either decree-holder or his Counsel was present. Simply because the name of the Counsel R.C.G. is shown as against the decree holder, it does not mean that he is present. The order sheet is meant to depict the correct picture of the proceedings that take place in the Court. In a routine manner, the order sheet is written stating as 'the D. Hr by Counsel Sri R.C.G.' It only means that D.Hr. is represented by the Counsel. The absence of the word 'present' goes a long way in showing that in all probability the decree-holder and his Counsel were not present at all. Farther, there is nothing in the proceedings dated 29-7-1978 to show whether the Court had actually conducted the sale; or whether decree-holder or any other person was present in the Court at that time; or whether any bid was offered by the decree-holder or by any one; or whether the bid was accepted by the Court. The routine use of the words 'bid accepted' does not mean that the bid was offered by the decree holder or by any one in the Court House. If it is read along with the note made on the left side, it only means that the bid conducted at the spot was accepted by the Court below. We cannot (sic)fer anything more from the order-sheet written on the right side dated 20-7-1978. Therefore, this is a case where Rule 138 of the Rules has been violated. Therefore, it cannot be said that any sale took place in the Court on 29-7-1978.
10. It is no doubt true that the Judgment Debtor had filed an application under Order 21 Rule 90 of C.P.C. on 29-7-1978 itself. It does not mean that on that day he had come to know that no bid was offered in the Court House by the decree-holder or by any one else. He filed the application under Order 21 Rule 90 in a most routine manner, perhaps without knowing that no sale in the eye of law had taken place on 29-7-1978. The dismissal of the application under Order 21 Rule 90 and confirmation of the same in M. A. No. 59/79 and confirmation of the same by this Court in C.R.P. No. 2760/80, do not mean that Rule 138 was followed by the Trial Court. The dismissal of the application under Order 21 Rule 90 and the dismissal of the Miscellaneous Appeal and also the dismissal of the C.R.P. would only indicate that T.A. II filed by the Judgment Debtor under Order 21 Rule 90 has no substance or merit. The dismissal of these, does not debar the Judgment debtor from resorting to Section 47 of the C.P.C. When there is no sale at all in the eye of law, the question of confirmation of sale does not arise, as held by this Court in the above referred decision. Therefore, the order of confirmation dated 6-1-1979 cannot be upheld at all. As already stated above, there is nothing in the order sheet dated 29-7-1978 to indicate whose bid was highest. Therefore, under these circumstances, the proceedings dated 29-7-1978 being in violation of Rule 138 there is no sale at all and the proceedings would only indicate the nullity of the alleged sale, Section 47 of the C.P.C. is clearly attracted to the facts of the present case.
11. Sri A. V. Gangadharappa, learned Counsel for the respondent, then urged that the sale had been conducted on 29-7-1978 and that the present application under Section 47 of the C.P.C. had been filed on 1-1-1986 after statutory period of limitation and therefore the petition was barred by time. He relied on Article 127 of the Indian Limitation Act. I reads as
'To set aside a sale in the execution of a decree including any such application by a judgment debtor, within 60 days from the date of the sale.'
12. The learned Author Sri Mulla in his Commentary to the Civil Procedure Code, 14th Edition, I Volume, page 351 under Note-21 has stated as :
'An application under this Section to set aside a sale in execution of a decree must be made within 30 days from the date of sale : ('Limitation Act 1963 Schedule I Article 127'). But if the sale is void, as where no notice is given as required by Order 21 Rule 22, it is not necessary to apply to the Court to set aside the sale, hence article applicable in such a case is the residuary Article 137 which provides a period of 3 years from the date when the right to apply to accrues, and not Article 127(b).'
13. An application by a Judgment Debtor to set aside a sale will have to be filed within 60 days from the date of sale. But, if there is no sale at all in the eye of law and if the proceedings do not indicate the sale conducted, it is not Article 127 of the Limitation Act, but it is Residuary Article 137 of the Limitation Act that would govern the case. Article 137 prescribes a period of 3 years and the right to file an application arises when the right to apply accrues.
14. Para-4 of the Petition reads as :
'Now, the petitioner on a perusal of the Court Order in the Execution Case No, 133/77 have come to know that there is no sale according to law.'
Thus, this allegation only shows that the judgment debtor came to know at about the time of filing this application that there is no sale according to law. It is stated in para 4 of the Petition as :
'Now, the petitioner on a persual of the Court order in the Execution Case No. 133/77 has come to know that there is no sale according to law.'
The word 'now' would clearly indicate that he came to know at about the time when he filed the application under Section 47 of the C.P.C. that there was no sale at all in the eye of law.
15. Para-7 of the petition reads as follows :
'The cause of action is on the informity is brought forth with which can be rectified forthwith.'
It shows that he came to know about the infirmity round about the very day he filed the application under Section 47 of the C.P.C. Thus, in my opinion, he has filed this application within 3 years from the date he came to know that there is no sale at all and thus he got the right to apply under Section 47 of the C.P.C.
16. The learned Counsel Sri Gangadharappa submitted that the present revision petitioner-judgment debtor was a party and he ought to have known on 29-7-1978 that Rule 138 had not been followed at all. After all, the judgment-debtor is not a Counsel. Thus he cannot be expected to know all the proceedings. Such things will have to brought to his knowledge by the lawyer. The lawyer himself, who represented him, did not appear to know on that day that there was a rule like Rule 138 and it was a mandatory provision. Therefore, his simple presence does not mean that he knew about the violation of Rule 138.
17. In the result, the Revision Petition is allowed ; the so-called sale dated 29-7-1978 is set aside and the resultant order of confirmation dated 6-1-1979 also is set aside. Execution Case No. 133/77 is restored to the file and the Executing Court may proceed with the Execution in accordance with law.