1930 PLP 565 (CLC)

4. In support of the above application Mr. Fazle Gham the learned counsel for the judgment-debtor has urged the following points (i) that the acceptance of the offer made by the purchaser was in violation of the provisions of Order XX1, rule 65, C. P. C. which contemplates a sale by public auction and not by a private offer. (ii) The terms of the proclamation were settled in violation of the provisions of Order XXI, rule 66(2), C. P. C. (iii) that there has been violation of the provisions of Order XX1, rule 67 (1), C. P. C. (iv) there has been violation of Order XXI, rule 68, C. P. C. inasmuch as the of the sale was not fixed after the expiry of 30 days from the date of the affixation of the proclamation at the Court's premises. (v) that as on 18-12-1976 the sale was postponed for more than 7 days. but the mandatory provisions of Order XXI, rule 69 (2), C. P. C. was not complied with. . . (vi) that the price deposited by the purchaser was in violation of order XXI, rule 15, C. P. C. (vii) that the property has been sold for a concealed value known to the Nazir and to the purchaser. On the other hand Mr. Khalid Anwer, the learned counsel for the purchaser has urged that the judgment-debtor's present application is barred by limitation and that there has not been any violation of any of the provisions of the C. P. C. and that the judgment-debtor has failed to make out the case under Order X71, rule 90, C. P. C. for calling an interference by this Court.

5. In order to appreciate the respective contentions of the learned counsel for the parties, it will be advantageous to refer to Order XXI, rule 90, C. P. C., which reads as follows : "Where any immovable property has been sold in execution of a decree, he decree-holder or any person, entitled to share in a rateable distribu tion of assets, or whose interest are affected by the sale, may apply to the Court to set aside the sale on the: ground of a material irregularity or fraud in publishing or conducting it : Provided that o sale shall, be set aside on the ground of irregularity or fraud unless be upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud: Provided further that no such application shall be entertained unless the applicant deposit such amount not exceeding twenty per cent. of the sum realised at the sale or furnishes such security, as the Court may direct." It may be noticed that in order to succeed under the above-quoted provision of 13w, it is incumbent upon an applicant either to prove material irregularity ,or fraud and also to satisfy the Court that the applicant ha sustained injury by reason of such irregularity or fraud.

6. Before dealing with the contentions of the learned counsel for the parties on merits of the case, it may be appropriate to deal with the question of limitation- In the instant case as mentioned earlier that the purchaser's offer was accepted by the Court on 20-11-1977 and it was ordered that the purchaser should deposit that balance of the price within one month. However, the purchaser deposited a pay order dated 3-12-1977 on 4-12-1977 with the Nazir of this Court, which was encashed by the Nazir's office on 4.12-1977, against which a receipt was issued on 10-12-1977, which was followed by the issuance of a sale certificate on 19-12-1977. From the above -facts it is clear that upon the acceptance of the purchaser's offer the sale had taken place on 20-I1-1977 (when the purchaser's offer was accepted), and it was completed when the purchaser deposited a pay order dated 3-12-1971 with the Nazir of this Court on 4-12-1977. If we take either of the above two dates as the date of the sale, the present application which was presented on 8-1-1978, is barred by time by virtue of Article 166 of the First Schedule to the Limitation Act, which provides a period of 30 days from the date of the sale, for setting aside a sale in execution of a decree. Mr. Fazle Ghani the learned counsel for the judgment-debtor has contended that for the purpose of computing the period of limitation the date of issuing of the certificate namely, 19-12-1977 should be taken as a terminus a quo and not the date of the order dated 20-11-1977 or the date when the purchaser deposited the balance of the price. In my view, the above contention is untenable as the issuing of a sale certificate is merely an administrative act, which was to follow- ors the receipt of the balance amount as per aforesaid Court's order date 20-11-1977. It was alto urged by Mr. Fazle Ghani that in any case Article 181 of the First Schedule would be applicable to the instant case. In my view, article 181 cannot be pressed into service when there is a specific article namely, article

166. Mr. Khalid Anwar has referred to the case of Muthiah Chettiar and another v. Bawa Sahib and others (I), wherein it was held by a Division Bench of the Madras. High Court that inherent powers of a Court are not to be used for setting aside an alleged irregular sale when the application of the judgment-debtor under Order XX1. rule 90 is found to be e barred by time. 1, therefore, hold that the present application is barred by limitation. 7. (a) Reverting to the various contentions urged by the learned counsel for the parties on merits. I intend to take up in seriatim. (b) Referring to Mr. Fazle Ghani's contention that Order XXI; rule 65 C. P. C. contemplates a sale by auction and does not provide acceptance of a private offer, it may be observed that in the instant case the property was put to auction twice on 18-12-1976 and on 11-10-1977, but there was no bidder. The final decree was passed on 13-8-1974 and the execution application was filed on 29-1-1975. In .my view, though Order XXI, rule 65, C. P. C. con-templates a sale by auction but in a fit case a Court is competent under its C inherent power, to accept a private offer after due notice to the Fatties when it is satisfied that the offer is reasonable. As pointed out here hereinabove that the purchaser's offer was accepted by the Court after due notice the parties for the aforesaid Nazir's reference dated 30-10-1977. The notice to the judgment-debtor was served through her Advocate. As per bailiff's report dated 17-11-1977 the notice was received by the judgment-debtor's Advocate's Court Clerk. The approximate value of the property given in the sale proclamation was 2,33,164.00 and whereas the offer was for Rs. 3,25,000. in addition to the above amount the purchaser undertook to discharge tax liability, which according to him comes to Rs. 8,000 tar Rs. 10,

000. If the (1) A I R 1915 Mad. 392 contention of the learned counsel for the judgment-debtor is to be accepted, it would mean that the powers contained in the C. P. C. are exhaustive and a Court has no powers to ensure the execution of a decree by passing an appropriate order which may not fall within the compass of the C. P. C. It may be pertinent to mention that though the C. P. C. does not empower a Court to grant police aid for the execution of a decree or to authorise D breaking/opening of locks/doors, but the Court under its inherent powers cart grant prayer for police aid etc. in order to ensure the execution of the decree.1 It cannot be urged that granting of flee police aid will be illegal. In this regard it may be relevant to refer to the case of Falah-ul Momineen Trusrv. V. P. Abdullah (P L D 1970 Kar. 179) where in Muhammad Hussain, J. (as his Lordship then was) while considering the question as to whether the order of granting of the police aid by the executing Court in an execution application was legal in the absence of an express provision to the C. P. C., was pleased to hold the Legislature has in the C. P. C. provided for all possible eventualities and to such matters which were not foreseen at that time a provision like section 1 ~ 1, C. P. C. was enacted to empower the Court to meet such an unforeseen eventuality. It was further held that apart from section 151, C. P. C. the Court has also inherent power to take all steps to execute it own mandates and-orders as this power flows from the jurisdiction. Hi Lordship also quoted with approval the following passage from page 136 of Corpus Juris Secundum, Volume 21 "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, es quoque concessa esse videntur, sine quibus jurisdiction explication non petit. Thus, an Act which empowered justices to require persons to take an oath as special constables, and gave them jurisdiction to enquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectively exercised." 1n my view an executing Court in the absence of a prohibitive legislation has implied powers to do all things that are reasonably necessary for. executing its decree effectively. The above powers include the power to accept a private offer for the attached property, when in spite of best efforts the attached property could not be sold through auction and the. Court is satisfied that the private offer is reasonable. (c) Reverting to the second contention of Mr. Fazle Ghani that the provisions of Order XXI, rule 66(2), C. P. C. were not complied with, it may be observed that in support of the above contention Mr. Fazle Ghani has pointed out that encumbrances were not shown in the proclamation. namely (i) The decree of the District Court referred to hereinabove in para. 1 was not mentioned. (ii) That the decree-holder had not filed statement of interest up to date. (iii) 1t was not stated that the judgment-debtor had only leasehold rights in the plot. The copy of the two proclamations for the two auctions are on the file, which indicate that the came of the decree-holder in question was mentioned and also the decretal amount to be recovered were shown as Rs. 200,650.23. The above figure included interest as well. At page 3 of the proclamation it was also stated under the column of encumbrances that the property was also attached against the decree in Execution No. 247,167 for the decree passed for Rs. 37,

231. It is, therefore, incorrect that the encumbrances relating to the decrees were not shown. The rights, and interest of the judgment-debtor in the property were put to auction. The full description of the property was also given it is a matter of common knowledge that K. D. A. in its Housing Schemes grants 99 years lease. The omission to mention the above fact in the proclamation was of no consequence. It is also factually incorrect that the decree-holder had not filed any statement of interest. The statement of interest is on the record. (d) Reverting to the contention .of Mr. Fazle Ghani that the provisions of Order XXI, rule 67(2), C. P. C: were not complied with, it may be stated that in support of the above contention Mr. Fazle Ghani has urged that in the instant case the order of attachment was not proclaimed by beat of drum, the copy of the order was not affixed at the property and at the office of the Collector of the District and, therefore, there was breach of sub-rule (2) of rule 54 of Order XXI, C. P. C. which was to be complied with by virtue of rule 67(2), C. P. C. It may be noticed that sub-rule (2) of rule 54 provides proclamation of the order by beat of drum or by other customary mode. In the instant case, it is clear from the record that the order of attachment and sale was -advertised in the four newspapers on each occasion when the property was to be auctioned, ice. on 18-.12-1976 and on 1-10-1977. The; aforesaid for news papers mentioned in para. 2 hereinabove in respect of the auction scheduled on I-10-1977 are on the record containing the public notice for the sale of the. property on 1-10-1977. It is also clear from the Nazir's references dated 6-1-1977 and 30-10-1977 that in addition to the above public notices published in the ,newspapers, 200 hand bills were also got printed and were distributed at the important places of the city. The copies of the hand bills are on the file for both the aforesaid public auctions containing the full details of the encumbrances, the decreral amount and 'the description of the property etc. including the valuation. It is also clear from the record as mentioned earlier that the copies of proclamations were ,affixed at the property in question for both the auctions and were also affixed at the police station and on the High Court's notice board. The copies of the proclamation were also sent to the Chief Assessor & Collector K. M. C. and to the City Deputy Collector's office under the Superintendent, Execution Branch's letters dated 2nd November 197u and 8th August 1977. The above contention of the learned counsel for the judgment-debtor is, therefore untenable. Mr. Fazle Ghani also referred to the case of Trimbak Ram v. Nana and others (1 L R 10 Born. 504), the case of Basha ttulla v. Uma Churn.Dutt (1 L R 16 Cal. 794) and the case of Rajendra Behari Lal v. B. Guari Lal and other. (A R 1933 All. 747). In the first case, the sale was set aside on the ground that there was no beating of drum, the second case the sale was set aside on the ground that the auction was conducted before the time specified in the auction notice and in the third case, it was held that failure to publish a sale proclamation by neat of drum (where it is possible), is a material irregularity, but unless such irregularity can be connected with the alleged loss, the sale cannot be set aside. In my view, in Karachi the other customary mode for proclaiming a sale proclama tion is through hand bills, and therefore, no exception cart be taken to the fact that there was no beating of drum to the instant case. Furthermore, simpliciter the above omission would not render a sale liable to be set aside, but it should be proved that the aforesaid omission resulted into a loss to the applicant. (e) Reverting to the contention that in the instant case there has been violation of Order XXI, rule 68, C. P. C. inasmuch as the auction fixed for 1-10-1977 was before the expiry of the period mentioned in rule 68 of Order XX1, C. P. C., it may be observed that this is not correct. The first proclama tion was affixed at the notice board of the High Court on 4th November, 1976 as per bailiff's report dated 13-11-1976 whereas the auction was fixed for 18-12-1971. The second proclamation was affixed at the notice board of the High Court on 9th August 1977 as per bailiff's report dated J 5-8-1977, whereas the auction was fixed on 1-10-1977. It is, therefore, incorrect to urge that the sale was fixed before the expiry of 30 days from the date of affixation of the sale proclamation at the High Court notice board. (f) Referring to the contention of the learned counsel for the judgment debtor that there has also been breach of the provisions of Order XXI, rule 69(2), C. P. C, inasmuch as the sale after the date of the first auction was postponed for more than 7 days and that there was no fresh proclamation issued, it may be observed that it is factually incorrect. The second procla mation was issued and the copies thereof were sent to the Chief Assessor & Collector K. M. C. and to the City Deputy Collector office and the copies of the same were also affixed at the property at the police station and on the High Court's notice board as ,pointed out hereinabove in para. 7 (d). The copy of the fresh proclamation, is on the record with the endorsement of the bailiff. (g) Reverting to the contention of Mr. Fazle Ghani that the property was sold at a concealed value known to the it and to the purchaser, it may be observed that the terms of proclamation were settled after a notice to the judgment-debtur: In the proclamation the approximate value of the property shown was Rs. 2,331.64. As pointed out hereinabove the property in question was put to auction twice but there was no response. It is an admitted position that the bungalow in question is in the occupation of a P.

1. A. employee at Rs. 800 per month. It is plausible that there was no response to the public auction as the property was in the occupation of a tenant, the rent of which was not compatible with the value of the property. It was urged by the learned counsel for the judgment-debtor that the Nair of this Court it in collusion with the purchaser and the tenant got the private offer accepted by this Court for an unreasonable price. There is no such allegation against the Nazir in the application filed by the Judgment-debtor. The objection taken in the application was that the property in suit is in possession of the P. I. A: as a tenant of the applicant; judgment-debtor and is occupied by one Aftab and that there has been dispute between the landlord and the tenant in the past and that the property has now been purchased by another P.

1. A. employee Mr. burrani in collusion with the tenant. 1 cannot spell out any collusion even between purchaser and the tenant from the record of the case. On the other had, the purchaser in his letter dated 29-10-1977 stated that the tcriant who is in occupation of the property for the last 9 years, to him and to his family was very dear and near and that he would like that the tenant be not disturbed. After disclosing the above facts, the purchaser made an offer to purchase the property for Rs. 3,25,000 Also undertook to pay all the outstanding taxes pertaining to this property .which, according to him, were about Rs. 8,(1(10 to 10,(

100. In addition to that he leas also stated that he has. incurred expenses amount ing to Rs. 19,500 by way of stamp duty and other charges. The judgment-debtor in his present application has given the market value of the property as riot less than Rs. 5 lacs. It may be again observed that the purchaser's offer was accepted after due notice to the judgment-debtor through her Advocate. It is-unfortunately that he was no; represented at the time when the Court adopted the purchaser's offer, but the legal position remains that the acceptance was after due notice to the judgment-debtor. In view 4 the above fact, it cannot be urged that the it had sold the property for a concealed value or for an unreasonable price. If the Nazir was in fact allegedly in collusion with the purchaser, it would have been easier for him to manipulate any of the aforesaid two auctions held and to accept an alleged bid for an amount close to the valuation given in the proclamation, vie. Rs. 2,33,

164. Mr. Khalid Anwar, the learned counsel for the purchaser, referred to the case of Alliance Bank of Shimla Ltd. v. Miss I. Lowrie (A 1 R 1926 Lah. 588) in which it was, F held that the Court cannot set aside a sale under Order XXI, rule 92, C. P. C.I on the ground of-inadequacy of sale price. It was also urged by Mr. Khalid Anwar that the objections relating to the defect in the proclamation cannot be raised by the judgment-debtor after the confirmation of the sale as the terms of the proclamation were settled after due notice to the judgment-debtors. In support of the above contention he has referred to the case of Dhirendra Nathi Gorai v. Sudhir Chandra Gosh and others (A I R 1964 S C 1300) wherein it was held that non-compliance with section 35 of the Bengal Money Lenders Act (X of 1940) does not render the sale a nullity and that, the judgment-debtor although receiving notice of proclamation not attending at drawing up of proclamation and also not taking objection to non-observance for the aforesaid section, cannot be allowed to raise the above objection and :he sale is not liable to be set aside. (h) Reverting to the contention of the learned counsel for the judgment debtor that the price of the property was not paid by the purchaser in terms of Order XXI, rule 85, C. P. C., it may be observed that the aforesaid provi sions of the C. P. C. are not attracted to the instant case as the sale had not taken place in pursuance of any public auction. In any case, there has been compliance of the aforesaid provisions inasmuch as that the sale in favour of the purchaser was accepted by the Court through the order dated 20-I I-1977 and it was ordered that the purchaser should deposit the balance of the price within one month, but the purchaser within 15 days deposited the balance price as the. pay order dated 3rd December 1977 for the balance price was deposited on 4-12-1977 with the Narir of !his Court which was within 15 days from the date of the aforesaid order dated 20-I 1-1977 Mr. Fazle Ghani has referred to the case of Mandal Mohanlal Shah and whcrs v. Sardar Syed Ahmed Syed Muhammad and others (A I R 1954 S C 349) and the case of Syed Brothers, Lahore v. District Council. Lyallpur (P L D 1977 Lah. 542). In the first case it was held that non-payment of price as required under Order XXI, rules 84, 85 and 86, C. P. C. wipes out the sale. In the latter case it was held that the provisions of rules 85 and 86 of Order XXI are mandatory and that the order of confirmation of sale cannot precede deposit of value for which the property was sold. The facts of the above cases are distinguishable from the instant case for the aforesaid reason.

8. It was also urged by Mr. Fazle Ghani that this Court can invoke the provisions of section 47, C. P. C. while considering the judgment-debtor's application in question. Whereas Mr. Khalid Anwar his urged that after the confirmation of the sale section 47, C. P. C. cannot be pressed into service. Apart from the fact that the judgment-debtor's application in question is Lnder Order XXI, rule 90 read with section 151, C. p. C. and no under section 47, the contention of Mr. Khalid Anwar is supported by the case of Behoy Krishna Paik and another v. Monta Juddi Shaikh and others (P L D 1961 Dacca 177) wherein it was held by the Dacca High Court that when the executing Court has disposed of the execution application after the confirmation of the sale, the executing Court becomes functuv officio and as such as application under section 47, C. P. C: is not maintainable.

9. Before parting with discussion 1 may observe that I had heard the arguments of the learned counsel for the parties on 11th, 12th and 13th August 1979. On the latter date upon the conclusion of the arguments 1 did not dictate the order or pronounced the order as the learned counsel for the parties requested that the order may not be pronounced as the parties were trying to settle the matter out of the Court. After that the learned counsel for the judgment-debtor took time on 19th August, 22nd August arid 5th September 1974 on the ground that he was unable to obtain instruc tions from his client. When on 19-9-1979 the case came up for further orders before me Mr. Fazle Ghani, learned counsel for the judgment-debtor, stated that his client was not agreeable to the settlement. Thereupon, I reserved the case for orders. From the file of the case it appears that on 18-9-1979 the learned counsel for the judgment-debtor moved an application under section 47 read with section 151, C. P. C., wherein it was prayed that four issues be framed and the judgment-debtor be permitted to summon four witnesses mentioned therein. The above application was fixed for orders I did not consider it proper to issue notice upon the above application to the other parties since the arguments were concluded on 13-8-1979 and no case was made out for reopening of the case. The above application is miscon ceived and therefore, it is dismissed. The record of the Nazir and the record of the Execution No. 156176 were made available to the learned counsel for the parties at their request during the arguments and were referred to by learned counsel for the parties in support of their contentions. In view of the above discussion 1 am of the opinion that the judgment debtor has failed to' make out a case under Order XXI, rule 90, C. P. C. setting aside the sale. 1, therefore, dismiss the above application but there will be no order as to costs. M. Y. M Petition accepted.