Judgment:
S.K. Dubey, J.
1. This order shall govern disposal of Misc. Petition No. 2608 of 1990 (Chowalal v. Johanalal Chandrakar) as well.
2. Petitioner Johanlal Chandrakar is the auction-purchaser of the land mortgaged belonging to the judgment-debtor Ramdhan, the borrower, a member of the respondent No. 5 Society, who could not repay the mortgage money of Rs. 10, 554.08 with interest on an award dated 24-11-1978 passed under Section 64 of the M.P. Co-operative Societies Act, 1960, against the borrower-member, has come before this Court under Articles 226 and 227 of the Constitution of India, In realisation of the amount under award, the land admeasuring 17.88 acres, situated in village Kauajhar, Tahsil Mahasamund, District Raipur put not to auction on 8-1. 1979 in Recovery Case No. 270/Mahasamund/76-77 and was auctioned in favour of the petitioner for Rs. 21.600/-, being the highest bid. The petitioner, on confirmation of sale on 4-2-1981, was granted a certificate of sale and possession of the land was given on 1-5-1982. Petitioner contends that after taking possession, he made huge investment to make the land arable. As the petitioner did not pay the costs of ganeral stamps in the prescribed period as required by Rule 66(2)(h) of the Madhya Pradesh Co-operative Societies Rules, 1962, for short, the 'Rules', on objection being raised and on its determination, the sale was declared void in view of the Full Bench decision of this Court in the case of Kanhaiyalal v. Board of Revenue, AIR 1977 MP 94. The petitioner having lost in the Board of Revenue, the highest Co-operative tribunal, preferred a writ petition against the order of setting aside the sale and of reauction which was dismissed by this Court (in M.P. No. 788/86, decided on 6-2-1989; Johanlal v. Chobelal, reported in 1989 RN 115 : (AIR 1990 MP 243). Petitioner filed a Special Leave Petition before the Supreme Court (No. 3788 of 1989) which was also dismissed on 17-4-1989.
3. Petitioner, instead of handing over possession to the Society for reauction made a claim of refund of purchase money, investments, etc., before the Recovery Officer under Rule 66(5)(ii) of the Rules of which, petitioner submits, a separate proceeding is pending before the Board of Revenue.
4. In this petition,the petitioner contends that the direction of the Recovery Officer, confirmed by the Board of Revenue to deliver the possession for reauction till the amount of auction-sale with interest and compensation for improvement is not paid, that being the first charge in terms of Rule 66(5)(ii), which is pan materia with Order XXI. Rule 93, CPC, the petitioner cannot be directed to hand over the possession. Petitioner's learned counsel Shri J, M. Sood, to Support the contention, placed reliance on a decision of the Supreme Court in Hindi Pracharak Prakashan v. M/s. G. K. Brothers, AIR 1990 SC 2221, and a decision of Madras High Court in Moitheensa Rowthan v. Apsa Bivi, XXXV-ILR 194, and a decision in case of Narayan v. Behari Lal, reported in AIR 1926 Nagpur 160. Petitioner also contends that respondent No. 6, who is the son of the judgment-debtor, has no locus standi as he objected to auction-sale in his own right alleging that the land belonged to him and was partitioned in the year 1968, but that objections was rejected on 19-12-1978, which was confirmed by all Co-operative Courts and the Board of Revenue,which has become final, the respondent No. 6 has no right to claim restoration of Possession.
5. The respondent No. 6, who is one of the legal representatives of the deceased judgment-debtor, with other legal representatives has also challenged the order of the Board of Revenue by their petition in M.P. No. 2608/90, contending that direction of handing over the possession to the Society is illegal, as the petitioner and the legal representatives of the deceased judgment-debtor on sale having been set aside before reauction of the land tendered and remained willing to deposit the amount due through cash or cheque and draft, but that was not accepted and, therefore, the Society ought to have been directed to accept the amount and instead of reauction of the land, the possession of the land ought to have been delivered to the legal representatives of the deceased judgment-debtor.
6. While opposing the petition of the auction-purchaser, Shri M. M. Kaushik, learned counsel for the legal representatives of the deceased borrower, submitted that respondent No. 6, Chowalal in his own capacity and as a legal representative, with others, has got full right to oppose the petitioner of the auction-purchaser and to claim possession after deposit of the amount under award including interest. Shri Kaushik also submitted that auction-purchaser is not entitled for any compensation or interest, as since 1981 the petitioner, auction-purchaser, is enjoying the land and benefits of the crops reaped,the land being an irrigated land. There are no permanent constructions, even if the auction-purchaser has raised, he has done so at his risk after the sale is set aside. In any case, as directed by this Court in earlier petiion, if the petitioner claims compensation for the so called improvement, the petiioner has to resort to the remedy of a civil suit, for the two reasons, namely, 'that the order of this Court has become final and further, it is to be determined after enquiry whether the auction-purchaser is entitled for compensation which is not specified, to what extent after talcing into consideration the enjoyment of the land for such a long period.
7. Shri R.B. Jain, learned counsel for the Society, the decree-holder, supported the order of the Board of Revenue.
8. Before we deal the contention raised in these petitions, it would be appropriate to refer to relevant clauses of the Rule 66, which deals with attachment and sale of immovable property, which we extract:
'66. Attachment and sale of immovable property.-
(1) Immovable property shall not be sold in execution of a decree unless such property has been previously attached;
Provided that where the decree has been obtained on the basis of mortgage of such property, it shall not be necessary to attach it.
(2) In the attachment and sale or sale without attchment of immovable property, the following rules shall be observed-
(a) to (g)..... ..... .....
(h) The remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within fifteen days from the date of sale:
Provided that the time for payment of cost of the stamp may for good and sufficient reasons, be extended at the discretion of the Recovery Officer upto thirty days from the date of sale;
Provided further that in calculating the amounts to be paid under this clause, the purchaser shall have the advantage of any set off to which he may be entitled under clause (k).
(i) to (k)......
(3) Where prior to the date fixed for sale, the judgment-debtor or any person acting on his behalf or any person claiming an interest in the property sought to be sold, tenders payment of the full amount due together with interest, bhatta and other expenses incurred in bringing the property to sale, including the expenses of attachment, if any, the Sale Officer shall forthwith release the property after cancelling, where the property has been attached, the order of attachment.
(4) ......
(5) ......
(6) (i) .....
(ii) Whether the sale of any immovable property is not so confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser.
(iii) ......
(iv) ......
(7) ......
(8) ......
9. The auction-purchaser, relying on sub-rule (6)(ii) of Rule 66, which is pari materia to Order XXI, Rule 93, CPC, contends that unless he is paid the cost of improvements as compensation, the petitioner/auction-purchaser cannot be disposessed. Order XXI, Rule 93, CPC, reads thus:
'Rule 93. - Return of purchase-money in certain cases. - Where a sale of immovable property is set aside under Rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.'
10. From a bare reading of Order XXI, Rule 93, CPC, it is seen that if a sale is set aside under Rule 92 of Order XXI, CPC, the purchaser is entitled for an order of refund of his purchase-money with or without interest as the Court may direct against any person to whom it has been paid. While in Sub-rule (6)(ii) of Rule 66 of the Rules when the sale of any immovable property is not confirmed or set aside, the Rule says that the deposit or the purchase-money, as the case may be, shall be returned to the purchser. Therefore, by virtue of the provision a purchaser is certainly entitled to return of his purchase-money; however, award of compensation and/or interest is not envisaged in Sub-rule (6)(ii) of Rule 66, as in Order XXI, Rule 93, CPC, if such claim of compensation is not paid to such purchaser, can such a purchser retain the possesison, is indeed the question that is mooted and surfaces before us for determination.
11. Let us first examine the decisions relied on by the petitioner, which deal cases under Order XXI, Rule 93, CPC. The case of Hindi Pracharak Prakashan (supra) is a case where the decree-holder as also the auction-purchaser did not ensure that the money was put into interest-earning deposit nor the Court issued a direction so that it could have earned the income. Therefore, the Supreme Court, on the decree being satisfied and the sale which was not confirmed and set aside, observed that the auction-purchaser is entitled to the amount deposited in court as also to reasonable compensation which, in the opinion of the Surpeme Court, was 12% per annum in the shape of interest.
12. The Madras High Court, in case of Moitheensa, Rowthan (supra) has held that if a man enters upon a land as stranger purchaser in execution sale and effects improvements thereon, he is entitled to compensation therefor upon a reversal of such judgment and sale irrespective of any question of his bona fide.
13. The decision in the case of Narayan (supra), following the decision of the Madras High Court, says that on setting aside of the sale, equity seems to be in favour of making the judgment-debtor to pay the costs of improvement, as he will get the benefit of , them.
14. In the case in hand, in the earlier petition (case reported in 1989 RN 115) : (AIR 1990 MP 243), of which S.L.P. was dismissed, on the claim being raised for compensation for the improvement made on the land, this Court in para 8 observed : 'The contention is replete with question of fact galore which are wholly unfit for determination by us on the writ side', and directed that it shall be open for the petitioner to institute civil suit, if so advised, making plea for compensation and therein, to plead and prove on facts his claim for compensation.
15. In such circumstances, and the background of the law, though the Sub-rule (6)(ii) of Rule 66 does not provide for payment of interest except purchase money to which the petitioner is entitled, even for argument's sake on applying the analogy of Order XXI, Rule 93, CPC, which gives discretion to the court for awarding of interest, and the fact that the petitioner is enjoying the property and the fruits of the croups reaped since 1981, the petitioner, in our opinion, cannot withold the possission, which he has to deliver back to the Recovey Officer or to the Society, as the case may be. This we say so because the petitioner to establish first his right and entitlment to his claim for compensation and to what extent in the circumstances of the case by instituting the civil suit, as directed by this Court. Certainly, if the petitioner succeeds, he shall be entitled to execute the decree for compensation which may ultimately be passed against the person or persons who may get the possession with alleged improvements and/or constructions on reauction, or aginst the legal representatives, who on satisfying the decree may get the possession.
16. Coming to the contention of the petitioner challenging the locus standi of the respondent No. 6, in our opinion, it has no merit. True, the respondent No. 6, while the land was attached, raised an objection claiming the land to be of himself falling into his share after partition, but that objection was rejected. That rejection of objection of claiming the land in his capacity as sole owner, will not debar the respondent No. 6 with other legal representatives of the deceased judgment-debtor to claim possession on tender of all amounts due under award with interest, bhatta and other expenses incurred by the decree-holder in bringing the property to sale, including the expenses of attachment, as that including the expenses of attachment, as that right is available under Rule 66(3) to the judgment-debtor or any person claiming an interest in the property sought to be sold,
17. So far as the claim of the legal representatives of the deceased judgment-debtor in their petition is concerned, we are of the opinion that they are also not entitled to get the restoration of the possession till they tender and/or deposit the whole decretal amount, with interest and expenses incurred as required by Sub-rule (3) of Rule 66 of the Rules.
18. As a result of above discussions, the two petitions have no merit, and are hereby dismissed. The petitioner/auction-purchaser shall hand over the possession of the land, as directed by the Co-operative Courts. The purchase-money shall be refunded to the petitioner-auction-purchaser.
19. No order as to costs.