| SooperKanoon Citation | sooperkanoon.com/694503 |
| Subject | Civil |
| Court | Delhi High Court |
| Decided On | Mar-26-1997 |
| Case Number | Election Appeal No. 94 of 1997 and Execution Appeal No. 145 of 1990 |
| Judge | M.K. Sharma, J. |
| Reported in | 1997IIIAD(Delhi)723; II(1997)BC459; 66(1997)DLT735; 1997(41)DRJ499 |
| Acts | Code of Civil Procedure (CPC), 1908 - Sections 47 |
| Appellant | Bank of India |
| Respondent | Satbir Singh |
| Advocates: | Valmiki Mehta and; D.R. Bhatia, Advs |
Excerpt:
civil procedure code 1908 - section 47, 145 r/w order 21 rule 54 and 67--determination of questions by the court executing decree--execution of decree--attachment of immovable property--mode of making proclamation--on execution petition the jd made commitment to pay rs. 5000/- and rest in installments--furnished undertaking--surety bond--defaulted--on application sale proclamation ordered--applicant move in execution to recall sale proclamation--statement of account not signed as per banker's book evidence--before proclamation no attachment order was passed--copy of the attachment not sent to collector office of gaon panchayat--despite registrar's order application under chap. 24 rule 19 of delhi high court (original side) rules not moved by applicant--decree holder had the option to get the decree satisfied by way of sale--irregularities--and failure does not affect jurisdiction or amount to nullity--substantive compliance--application rejected.; the judgment debtors were trying to go back on the assurance which they gave to this court and on the basis of which indulgence was given to the judgment debtors to satisfy the decree in installments. it was further held that once the judgment debtors have furnished a security, section 145 of the code of civil procedure makes it very clear that decree holder could satisfy the decree by way of sale of such property to the extent of security and accordingly this court under the aforesaid order ordered for sale of the property.; in my considered opinion, there is substantial compliance of section 21 rule 54 in the instant case. besides, sale of property without attachment is not a nullity and at best the same is only an irregularity which does not, in any manner, affect the jurisdiction of this court to sell the property. the court should not set aside the sale unless substantial loss or injury is proved which the applicant has failed to prove in the present case. - - the contention of the petitioner in this application is that the sale proclamation dated 6.3.1997 is bad in view of serious illegalities in it and under such circumstances it be recalled. (9) in this connection, reference may also be made to section 145 of the code of civil procedure which was taken note of by this court in its order dated 22.3.1994. since the present applicant has furnished a security on behalf of the judgment debtors subsequent to passing of the decree, section 145 of the civil procedure code is applicable to the facts of the present case and in terms thereof, the decree holder has the option open before it to get the decree satisfied by way of sale of such property to the extent of security. besides, sale of property without attachment is not a nullity and at best the same is only an irregularity which does not, in any manner, affect the jurisdiction of this court to sell the property. the court should not set aside the sale unless substantial loss or injury is proved which the applicant has failed to prove in the present case. (11) so far the contention of the counsel in respect of sending a copy of the attachment order to the collector and the gaon panchayat is concerned, the same also could at best be an irregularity and failure to do so does not amount to a nullity.m.k. sharma, j.(1) this is an application filed by shri jagdhir singh under section 47, 145 read with order 21 rule 54 and 67 of the code of civil procedure. the contention of the petitioner in this application is that the sale proclamation dated 6.3.1997 is bad in view of serious illegalities in it and under such circumstances it be recalled. (2) it is submitted by the counsel appearing for the applicant that the sale proclamation is liable to be recalled as it does not correctly reflect the liability of the judgment debtors and of the surety in respect of the decretal amount. the counsel drew my attention to annexure 'x' annexed with the application which is stated to be a statement of account supplied to him by the bank. the said account shows a debit balance of rs. 63,401.18 as on 29.11.1996 and accordingly, as submitted by the counsel, sale proclamation showing a sum of rs. 3,87,167.45 is illegal on the face of it. (3) i have heard the learned counsel appearing for the decree holder also on this issue. the counsel drew my attention to the statement of account which is filed by the decree holder showing a total amount payable as rs.3,57,606.51. from the aforesaid statement of account placed on record by the decree holder, it is disclosed that as per the ledger the outstanding is rs.l,23,401.80 and uncharged interest as on the date is rs.2,08,225.00 and with the cost, the total amount payable is shown as rs.3,57,606.51. the aforesaid statement of account is certified under the bankers book of evidence act. as against the aforesaid account produced by the decree holder which is on record, the statement of account relied on by the counsel for the applicant is a statement of account which is unsigned and is not certified under the bankers book of evidence act. it appears that the aforesaid statement of account filed by the applicant does not include the amount towards uncharged interest. under such circumstances, the contention of the counsel appearing for the applicant has no merit and is accordingly rejected. (4) the next objection raised by the counsel appearing for the applicant as against the sale proclamation is that before issuing the sale proclamation in respect of the property in question, no attachment order was made in respect of the said property and unless an attachment order is passed by the court the property in question cannot be sold. the counsel further submits that under order 54 (2) of order 21, a copy of the attachment order was to be sent to the collector and also to the office of gaon panchayat which were admittedly not sent and thereforee the said proclamation suffers from serious illegality. (5) i have considered the aforesaid submission of the learned counsel for the applicant. reference, in this connection, may be made to the order passed by this court on 14.5.1991 on the present execution petition. the said order discloses that the judgment debtor made a commitment to this court that he would pay a sum of rs.50,000.00 to the plaintiff bank within one week and would give security for the balance decretal amount to the satisfaction of the registrar of this court and that the judgment debtor would pay the balance decretal amount in monthly installments of rs.l0,000.00 each. the aforesaid undertaking given by the judgment debtor was accepted by the court and it was directed that the judgment debtor would give security for the balance decretal amount to the satisfaction of the registrar of this court. in terms thereof, the present applicant, shri jagdhir singh, stood as the surety and his statement was recorded on 23.1.1992. said jagdhir singh also signed a bond exb. s-1 and he undertook to remain bound by the terms and conditions of the bond exb. s-1. he also filed an affidavit exb. s-2 giving the details of immovable properties owned by him. he also undertook in his statement that he would not encumber, transfer, assign or part with the above mentioned property without obtaining prior permission from the court. he also stated that in case the judgment debtor makes default, in that event the property mentioned in the affidavit exb. s-2 would be available for being sold in execution proceedings. by the aforesaid order dated 23.1.1992, in the light of the statement made by the surety and the documents executed by him, the court accepted the bond exb. s-1. (6) subsequently, it appears that the judgment debtor defaulted in making payment as assured by him to the' decree holder and an application in that context was moved by the decree holder for appropriate orders under section 145 of the code of civil procedure. it is noticed in the said order that the judgment debtor neither made payment ofrs.50,000.00 nor paid any installment as ordered by this court. (7) in the aforesaid application moved by the decree holder, which is registered as ea 251792, the decree holder sought for a direction from the court for the sale of the property which the judgment debtor had furnished as security before the registrar. subsequently, another application registered as ea 343/93 under section 151 of the code of civil procedure for similar relief was filed by the decree holder. this court after hearing the counsel for the parties came to the considered opinion that the judgment debtors were trying to go back on the assurance which they gave to this court and on the basis of which indulgence was given to the judgment debtors to satisfy the decree in installments. it was further held that once the judgment debtors have furnished a security, section 145 of the code of civil procedure makes it very clear that decree holder could satisfy the decree by way of sale of such property to the extent of security and accordingly this court under the aforesaid order ordered for sale of the property. (8) in pursuance thereof, sale proclamation was prepared. on 21.10.1994, the counsel appearing for the surety, the present applicant, submitted before the registrar that the sale proclamation issued was not in accordance with the order of this court and also not in accordance with chapter 24 rule 19 of the delhi high court (original side) rules. the registrar directed that an appropriate application could be moved in that respect which was never moved by the applicant and has now only filed the present application apparently on almost the same grounds. (9) in this connection, reference may also be made to section 145 of the code of civil procedure which was taken note of by this court in its order dated 22.3.1994. since the present applicant has furnished a security on behalf of the judgment debtors subsequent to passing of the decree, section 145 of the civil procedure code is applicable to the facts of the present case and in terms thereof, the decree holder has the option open before it to get the decree satisfied by way of sale of such property to the extent of security. (10) the learned counsel appearing for the parties also drew my attention to the provisions of section 21 rule 54 of the code of civil procedure which lays down for the procedure for attachment of immovable property. the said provision lays down that where the property is immovable, attachment will be made by an order prohibiting the judgment debtors from transferring or charging the property in anyway and all persons from taking any benefit from such transfer or charge. consequently, it is apparent that the effect of the attachment of immovable property is to prohibit the judgment debtors from transferring or charging the property in any manner and all persons from taking any benefit from such transfer or charge. since in the present case the surety has given an undertaking through his statement recorded in the court on 23.1.1992 that he would not encumber, transfer, assign or part with the property in question, necessarily the same virtually amounted to an order prohibiting the judgment debtors as also the surety from transferring or charging the said property in any manner. in my considered opinion, there is substantial compliance of section 21 rule 54 in the instant case. besides, sale of property without attachment is not a nullity and at best the same is only an irregularity which does not, in any manner, affect the jurisdiction of this court to sell the property. the court should not set aside the sale unless substantial loss or injury is proved which the applicant has failed to prove in the present case. (11) so far the contention of the counsel in respect of sending a copy of the attachment order to the collector and the gaon panchayat is concerned, the same also could at best be an irregularity and failure to do so does not amount to a nullity. the said contention is also without any merit. (12) the next contention raised is in respect of proposed selling of the property by lots which, according to the counsel for the applicant, is hit by section 57 of the delhi land reforms act. after hearing the counsel for the parties, i am of the considered opinion that it is a sale through proclamation and in pursuance of a decree passed by the court and in respect of the same the provisions of section 57 of the delhi land reforms act have no application. section 57 is applicable to a suit for partition which is not the cause of action in the present case. (13) consequently, all the objections raised in the application are found to be-without any merit and the same stand rejected and the application accordingly has no merit and is dismissed. list this matter before the joint registrar on 7.4.1997.
Judgment:M.K. Sharma, J.
(1) This is an application filed by Shri Jagdhir Singh under Section 47, 145 read with Order 21 Rule 54 and 67 of the Code of Civil Procedure. The contention of the petitioner in this application is that the sale proclamation dated 6.3.1997 is bad in view of serious illegalities in it and under such circumstances it be recalled.
(2) It is submitted by the counsel appearing for the applicant that the sale proclamation is liable to be recalled as it does not correctly reflect the liability of the judgment debtors and of the surety in respect of the decretal amount. The counsel drew my attention to Annexure 'X' annexed with the application which is stated to be a statement of account supplied to him by the bank. The said account shows a debit balance of Rs. 63,401.18 as on 29.11.1996 and accordingly, as submitted by the counsel, sale proclamation showing a sum of Rs. 3,87,167.45 is illegal on the face of it.
(3) I have heard the learned counsel appearing for the decree holder also on this issue. The counsel drew my attention to the statement of account which is filed by the decree holder showing a total amount payable as Rs.3,57,606.51. From the aforesaid statement of account placed on record by the decree holder, it is disclosed that as per the ledger the outstanding is Rs.l,23,401.80 and uncharged interest as on the date is Rs.2,08,225.00 and with the cost, the total amount payable is shown as Rs.3,57,606.51. The aforesaid statement of account is certified under the Bankers Book of Evidence Act. As against the aforesaid account produced by the decree holder which is on record, the statement of account relied on by the counsel for the applicant is a statement of account which is unsigned and is not certified under the Bankers Book of Evidence Act. It appears that the aforesaid statement of account filed by the applicant does not include the amount towards uncharged interest. Under such circumstances, the contention of the counsel appearing for the applicant has no merit and is accordingly rejected.
(4) The next objection raised by the counsel appearing for the applicant as against the sale proclamation is that before issuing the sale proclamation in respect of the property in question, no attachment order was made in respect of the said property and unless an attachment order is passed by the Court the property in question cannot be sold. The counsel further submits that under Order 54 (2) of Order 21, a copy of the attachment order was to be sent to the Collector and also to the office of Gaon Panchayat which were admittedly not sent and thereforee the said proclamation suffers from serious illegality.
(5) I have considered the aforesaid submission of the learned counsel for the applicant. Reference, in this connection, may be made to the order passed by this Court on 14.5.1991 on the present execution petition. The said order discloses that the judgment debtor made a commitment to this Court that he would pay a sum of Rs.50,000.00 to the plaintiff bank within one week and would give security for the balance decretal amount to the satisfaction of the Registrar of this Court and that the judgment debtor would pay the balance decretal amount in monthly installments of Rs.l0,000.00 each. The aforesaid undertaking given by the judgment debtor was accepted by the Court and it was directed that the judgment debtor would give security for the balance decretal amount to the satisfaction of the Registrar of this Court. In terms thereof, the present applicant, Shri Jagdhir Singh, stood as the surety and his statement was recorded on 23.1.1992. Said Jagdhir Singh also signed a bond Exb. S-1 and he undertook to remain bound by the terms and conditions of the bond Exb. S-1. He also filed an affidavit Exb. S-2 giving the details of immovable properties owned by him. He also undertook in his statement that he would not encumber, transfer, assign or part with the above mentioned property without obtaining prior permission from the Court. He also stated that in case the judgment debtor makes default, in that event the property mentioned in the affidavit Exb. S-2 would be available for being sold in execution proceedings. By the aforesaid order dated 23.1.1992, in the light of the statement made by the surety and the documents executed by him, the Court accepted the bond Exb. S-1.
(6) Subsequently, it appears that the judgment debtor defaulted in making payment as assured by him to the' decree holder and an application in that context was moved by the decree holder for appropriate orders under Section 145 of the Code of Civil Procedure. It is noticed in the said order that the judgment debtor neither made payment ofRs.50,000.00 nor paid any Installment as ordered by this Court.
(7) In the aforesaid application moved by the decree holder, which is registered as Ea 251792, the decree holder sought for a direction from the Court for the sale of the property which the judgment debtor had furnished as security before the Registrar. Subsequently, another application registered as Ea 343/93 under Section 151 of the Code of Civil Procedure for similar relief was filed by the decree holder. This Court after hearing the counsel for the parties came to the considered opinion that the judgment debtors were trying to go back on the assurance which they gave to this Court and on the basis of which indulgence was given to the judgment debtors to satisfy the decree in installments. It was further held that once the judgment debtors have furnished a security, Section 145 of the Code of Civil Procedure makes it very clear that decree holder could satisfy the decree by way of sale of such property to the extent of security and accordingly this Court under the aforesaid order ordered for sale of the property.
(8) In pursuance thereof, sale proclamation was prepared. On 21.10.1994, the counsel appearing for the surety, the present applicant, submitted before the Registrar that the sale proclamation issued was not in accordance with the order of this Court and also not in accordance with Chapter 24 Rule 19 of the Delhi High Court (Original Side) Rules. The Registrar directed that an appropriate application could be moved in that respect which was never moved by the applicant and has now only filed the present application apparently on almost the same grounds.
(9) In this connection, reference may also be made to Section 145 of the Code of Civil Procedure which was taken note of by this Court in its order dated 22.3.1994. Since the present applicant has furnished a security on behalf of the judgment debtors subsequent to passing of the decree, Section 145 of the Civil Procedure Code is applicable to the facts of the present case and in terms thereof, the decree holder has the option open before it to get the decree satisfied by way of sale of such property to the extent of security.
(10) The learned counsel appearing for the parties also drew my attention to the provisions of Section 21 Rule 54 of the Code of Civil Procedure which lays down for the procedure for attachment of immovable property. The said provision lays down that where the property is immovable, attachment will be made by an order prohibiting the judgment debtors from transferring or charging the property in anyway and all persons from taking any benefit from such transfer or charge. Consequently, it is apparent that the effect of the attachment of immovable property is to prohibit the judgment debtors from transferring or charging the property in any manner and all persons from taking any benefit from such transfer or charge. Since in the present case the surety has given an undertaking through his statement recorded in the Court on 23.1.1992 that he would not encumber, transfer, assign or part with the property in question, necessarily the same virtually amounted to an order prohibiting the judgment debtors as also the surety from transferring or charging the said property in any manner. In my considered opinion, there is substantial compliance of Section 21 Rule 54 in the instant case. Besides, sale of property without attachment is not a nullity and at best the same is only an irregularity which does not, in any manner, affect the jurisdiction of this Court to sell the property. The Court should not set aside the sale unless substantial loss or injury is proved which the applicant has failed to prove in the present case.
(11) So far the contention of the counsel in respect of sending a copy of the attachment order to the Collector and the Gaon Panchayat is concerned, the same also could at best be an irregularity and failure to do so does not amount to a nullity. The said contention is also without any merit.
(12) The next contention raised is in respect of proposed selling of the property by lots which, according to the counsel for the applicant, is hit by Section 57 of the Delhi Land Reforms Act. After hearing the counsel for the parties, I am of the considered opinion that it is a sale through proclamation and in pursuance of a decree passed by the Court and in respect of the same the provisions of Section 57 of the Delhi Land Reforms Act have no application. Section 57 is applicable to a suit for partition which is not the cause of action in the present case.
(13) Consequently, all the objections raised in the application are found to be-without any merit and the same stand rejected and the application accordingly has no merit and is dismissed. List this matter before the Joint Registrar on 7.4.1997.