P.V. Cherian v. George Babu and Annie Babu and Angamaly Chity Fund Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937** ## **OP(C).No. 3722 of 2013 (O)** **-----------------------------------------** ## **E.A.NOS.245/2013 AND 351/2013 IN E.P.NO.121/2008 IN O.S.NO.175/2003 OF THE SUB COURT, MAVELIKKARA** **-----------------** ## **PETITIONER(S) :** ## **--------------------------** **P.V.CHERIAN, S/O.P.C.VARGHESE, PERUMPATTIL PUTHEN VEEDU, CHERUKUNNAM, THEKKEKKARA P.O, MAVELIKKARA, PIN-690 101.** **BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS** ## **RESPONDENT(S) :** **----------------------------** ## **1. GEORGE BABU,** **S/O.GEE VARGHESE GEORGE, 44-5, CHANAPPA KALYANI ROAD & JUNJAPPAN FARM ROAD, NELAMANGALA-2, BANGALORE RURAL FROM MEDIYA VILAYIL, KANNANKUZHY, MAVELIKKARA-690 101.** **2. ANNIE BABU, AGED 54 YEARS,** **W/O.GEORGE BABU, 44-5, CHANAPPA KALYANI ROAD & JUNJAPPAN FARM ROAD, NELAMANGALA-2, BANGALORE RURAL FROM MEDIYA VILAYIL, KANNANKUZHY, MAVELIKKARA-690 101.** **3. ANGAMALY CHITY FUND PVT. LTD., ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM-683 572** **R1 & R2 BY SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL SRI.BINNY.A.THOMAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **OP(C).No. 3722 of 2013 (O)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** ## **----------------------------------------** - **P1: COPY OF E.A NO.245/2013 IN E.P NO.121/2008 IN O.S NO.175/2003 OF THE SUB COURT, MAVELIKARA.** - **P2: COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXT P1 APPLICATION.** - **P3: COPY OF THE CHEQUE APPLICATION FILED BY THE DECREE HOLDER.** - **P4: COPY OF E.A NO.333/2013 IN E.P NO.121/2008 IN O.S NO.175/2003 OF THE SUB COURT COURT MAVELIKARA.** - **P5: COPY OF OBJECTION FILED IN EXT P4 BY THE PETITIONER.** - **P6: COPY OF E.A NO.351/2013 IN E.P NO.121/2008 IUN O.S NO.175/2003 OF THE SUB COURT, MAVELIKARA.** - **P7: COPY OF THE RECEIPT DATED 20/09/2013 ISSUED BY THE 3RD RESPONDENT.** - **P8: COPY OF THE ORDER DATED 11/10/2013 IN E.A NO.245 & 351/2013 OF THE SUB COURT, MAVELIKARA.** - **P9: COPY OF THE E.A NO.2308/2013 IN E.P NO.121/2008 IN O.S NO.175/2003 OF THE SUB COURT, MAVELIKARA.** - **P10: COPY OF THE ORDER DATED 05/10/2013 IN E.A NO.2308/2013 IN E.P NO.121/2008 IN O.S NO.175/2003 OF THE SUB COURT, MAVELIKARA.** - **P11: COPY OF THE CERTIFIED COPY OF THE B-DIARY EVIDENCING THE PROCEEDINGS.** **RESPONDENT(S)' EXHIBITS :** **-------------------------------------------** ## **NIL** **//TRUE COPY//** ## **P.S.TO JUDGE.** Msd. ## **K.ABRAHAM MATHEW J.** -------------------------------------------------------O.P.(C)No.3722 of 2013 -------------------------------------------------------Dated this the 20[th ] day of January, 2016 ## **JUDGMENT** The third respondent obtained a money decree against respondents 1 and 2 who are husband and wife. In execution of the decree the property of the first respondent was sold on 20.6.2013. It was purchased by the petitioner. On the same day he deposited 25% of the purchase money. The very next day (29.6.2013) the judgment debtors filed Ext P1 application under Order 21 Rule 89 of the Code of Civil Procedure to set aside the sale. But they did not deposit any amount along with the application. On 3.9.2013 they filed Ext P4 application to grant them two weeks time “to comply with Order 21 Rule 89”. On 20.9.2013 they paid Rs.5,12,881/- to the decree holder, which received it in full satisfaction of its claim under the decree as evidenced by Ext P7 copy of the receipt. On 27.8.2013 they filed Ext P9 application for permission to deposit five percent of the purchase price. They deposited in court 5% of the purchase price apparently on 20.9.2013. On 25.9.2013 the purchaser filed Ext P6 application to confirm the sale in his favour and to dismiss Ext P1 application filed by the judgment debtors to set aside the sale. On 5.10.2013 by Ext P10 nonspeaking order the court allowed Ext P9 application. By Ext P8 common order dated 11.10.2013 the court allowed Ext P1 application filed by the O.P.(C)No.3722 of 2013 2 judgment debtors and dismissed Ext P6 application filed by the purchaser. Thus the sale was set aside. The court allowed the purchaser to withdraw the purchase money deposited by him as well as 5% of the purchase money deposited by the judgment debtors. Legality of Ext P8 and P10 orders are challenged by the auction purchaser. 2. Order 21 Rule 89 and Rule 92 of the Code of Civil Procedure and Article 127 of the Limitation Act contain the provisions relating to application to set aside sale on deposit of the purchase price and five percent of the purchase price. **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 date 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. **Rule 92.** Sale when to become absolute or be O.P.(C)No.3722 of 2013 3 set aside-(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute. (2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within sixty days from the date of sale on in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by this court, the court shall make an order setting aside the sale. (The rest of the provision is omitted) Under article 127 of the Limitation Act an application to set aside sale in execution of a decree including any such application by a judgment-debtor shall be filed within sixty days from the date of the sale. 3. Order 21 Rule 89 sub rule 1 mentions (a) the person entitled to file an application - (b) the amounts he is required to deposit - (c) the place where the amounts should be deposited - (d) the persons for whose benefit the amounts should be - deposited, and (e) the time when the application should be filed. 4. The right of the first judgment debtor in this case to maintain an application under Rule 89 is not in dispute. Nor is there any controversy about the amounts and the persons for whose benefit he should have deposited them. O.P.(C)No.3722 of 2013 4 5. No interpretation is necessary to hold that the amounts should be deposited in court because rule 89 in explicit terms says so. In **Tribhobandas Purshottamdas Thakkar v. Ratilal Motilal (AIR 1968 SC 372)** the attention of the Supreme Court was invited to the judgments in **[(Chathurvedula) Subbayya v. Simha Venkata Subba Reddi & another (AIR 1935 Madras 1050)], Muthuvenkatapathy Reddy v. Kuppu Reddi & others (AIR 1940 Madras 427), Laxmansingh Baliramsingh & others v. Laxminarayan Deosthan & others (AIR 1948 Nagpur 127), Rabindra Nath Banerjee v. Harendra Kumar Chakravarthy (AIR 1956 Calcutta 462) and (M.H.Shivaji Rao v. Niranjanaiah(AIR 1962 Mysore 36)** which hold that if the judgment debtor instead of depositing in court the amount specified in the proclamation satisfies the claim of the decree holder under the decree, the requirement of Order 21 Rule 89 is complied with. Though the Supreme Court did not examine its correctness as it was unnecessary to decide the case it took the definite view that deposit of 5% of the purchase money by the judgment debtor and mere abandonment of the execution proceedings by the decree holder are not sufficient for the court to set aside the sale. In other words, if there is no full and final settlement of the claim under the decree, the application under rule 89 is not maintainable, for which the Supreme Court has no doubt. 6. The clause in Rule 89 that the judgment debtor “ may apply O.P.(C)No.3722 of 2013 5 to have the sale set aside on his deposit in court” makes it crystal clear that the deposit shall not be after the filing of the application. In **Dadi Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71)** the Constitution Bench of the Supreme Court held that the deposit has to precede or be made at the same time as the application. 7. Now coming to Rule 92, sub rule (2) specifically stipulates that the deposit should be made within 60 days of the date of the sale. This is not a period of limitation as held by the Supreme Court in **Dadi Jagannadham v. Jammulu Ramulu and others (2001) 7 SCC 71),** but only a condition precedent to maintain the application. 8. Rule 92(2) permits the court to grant the judgment debtor time to make deficiency in the amount deposited by him if it was occasioned only due to clerical or arithmetical mistake on his part. The court has no authority to grant him time for any other reason and the law insists on strict compliance with the requirement in rule 92(2). It follows that in the case of settlement between the decree holder and the judgment debtor, unless it takes place before the expiry of the period of sixty days the application is only to be dismissed. 9. The period of limitation for filing the application under rule 89 is 60 days from the date of sale as prescribed by Article 127 of the Limitation Act. In **Mohan Lal v. Hari Prasad Yadav (1994)4 SCC 177)** the Supreme Court held that the application under Order O.P.(C)No.3722 of 2013 6 21 Rule 89 of the Code being an application under the provisions of Order 21, Section 5 of the Limitation Act on its own language is not applicable specifically. It further held that Section 148 of the Code is not applicable for the simple reason that the time for making the application under Rule 89 is not fixed by the court. 10. In **Challamane Huchha Gowda v. M.R.Tirumala [(2004)1 SCC 453]** the Supreme Court has held that the application under rule 89 need not be in a particular form and even a memo with a prayer to set aside the sale is sufficient. 11. If the judgment debtor does not comply with Rule 89 or Rule 92 (2) of Order 21 of the Code of Civil Procedure, the court has no option but to confirm the sale. Confirmation of sale in such case does not depend upon the sweet will of the court. On the 61[st] day the court is duty bound to confirm the sale. To discharge its duty effectively it should post the execution petition to the 61[st] day of the sale unless it happens to be a holiday. The failure of the judgment debtor either to deposit the amounts mentioned in Rule 89, or to deposit five percent of the purchase money/fully satisfy the claim of the decree holder under the decree and within the time prescribed in Rule 92(2) of Order 21 of the Code, or to make the application within the period prescribed by Article 127 of the Limitation Act gives the purchaser an indefeasible right to get the sale confirmed. The delay of the court in passing the order confirming the sale will not defeat the purchaser's right. ## O.P.(C)No.3722 of 2013 7 12. In **Kamalamma v. Rohinikutty Chandrika (1990(2) KLT 716)** a division bench of this court held: “Where the court by inadvertence or otherwise fails to pass an order of confirmation, that cannot lead to deprivation of the right of the auction purchaser or cause prejudice to him. In such cases it can be deemed that the sale stands confirmed and where sale stands confirmed the sale shall be deemed to become absolute and title, by virtue of S.65 C.P.C shall relate back to the date of sale.” It is not the order of the court that confirms the sale; the court only records confirmation of the sale. 13. The judgment debtors deposited five percent of the purchase price and paid the amount due to the decree holder long after sixty days from the date of sale though they filed the application within sixty days. The learned Sub Judge should not have ignored the mandatory provision in Order 21 rule 92(2) of the Code of Civil Procedure. The order is illegal. 14. Learned counsel Sri. Sunil Kumar advanced an argument that the judgment debtors in their Ext P1 application have attacked the validity also of the sale on the grounds available under Section 47 and Order 21 Rule 90 of the Code of Civil Procedure and it may be construed as an application filed under Rule 90. 15. The provision in Order 21 Rule 89 sub rule (2) stares at the judgment debtors. It provides that where a person applies under Rule 90 to set aside the sale of his immovable property, he O.P.(C)No.3722 of 2013 8 shall not, unless he withdraws his application be entitled to make or prosecute an application under Rule 89. In other words, the judgment debtor cannot be allowed to maintain an application under Rule 89 and Rule 90 simultaneously. Rule 89 (2) has been interpreted by the Supreme Court in **Shiv Prasad v. Durga Prasad and another (AIR 1975 SC 957)** . The court has observed thus in paragraph 9. “The words used in the sub-rule are “ make or prosecute”. if it were to be held that the applicant is not entitled merely to prosecute his application under Rule 89 unless he withdraws his application under Rule 90, then the word “make” would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words. If a person has first applied under Rule 90 to set aside the sale, then, unless he withdraws his application, he is not entitled to make and prosecute an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a person has filed an application under rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter.” 16. Sri.Mohan Jacob George learned counsel for the petitioner has drawn my attention to paragraph 8 of the affidavit filed by the first judgment debtor in support of the application, in which he has stated thus: “I swear that I am willing to observe the conditions under the provision O.XXI R/89 of Code of Civil Procedure. Hence this Hon'ble Court may be pleased to set aside the sale conducted on 28.6.2013 for that I have filed separate petition O.P.(C)No.3722 of 2013 9 that may kindly be allowed otherwise I will be put to irreparable loss and hardship.” This is a clear declaration that it was under Order 21 Rule 89 only they made the application. Later, they filed another application (Ext P4) requesting that they might be allowed two weeks time to comply with the provisions in Order 21 rule 89 of the Code of Civil Procedure. In the affidavit filed in support of this application it is reiterated that the earlier application (Ext P1) was filed under Order 21 rule 89 of the Code of Civil Procedure. They filed yet another application (Ext P9) requesting the court to allow them to deposit 5% of the purchase money in the court. The submission of learned counsel Sri.Sunil Kumar that the application filed by the judgment debtors can be construed as an application under Order 21 rule 90 cannot be taken notice of even if their application contains certain facts which might attract rule 90. They did not intend to file an application under rule 90. 17. The prohibition of maintaining applications under rules 89 and 90 simultaneously does not become inapplicable if the facts attracting both rules are stated in a single application like the one filed by the judgment debtors in this case. Even if it is assumed that the judgment debtors intended to maintain the application under both rules 89 and 90, their subsequent applications compel the court to hold that they abandoned the right under rule 90, which was necessary for them to maintain the application under rule 89. O.P.(C)No.3722 of 2013 10 18. In the light of my finding that the application was filed by the judgment debtors only under Order 21 rule 89, it is not necessary for me to consider the submission of learned counsel Sri.Sunil Kumar that they were entitled to maintain an application under Section 47 of the Code. 19. The conclusion is this: Under Order 21 Rule 89 of the Code of Civil Procedure the person interested in the property sold in auction should deposit in court - and not elsewhere - the amounts required to be deposited by him under the rule within 60 days of the sale before he can file an application, which need not be in any particular form, for which also the period prescribed by law is 60 days from the date of sale. But if the parties satisfy the court that the decree was otherwise fully satisfied before the application was filed - and not later - it need not insist on deposit of the amount due to the decree holder in court. The court has no right to extend the time either for depositing the amount or filing the application to set aside the sale. An application filed without complying with rule 89 or rule 92 (2) Order 21 of the Code of Civil Procedure or beyond the period prescribed by Article 127 of the Limitation Act is liable to be dismissed in limine. The judgment debtor cannot maintain an application under rules 89 and 90 simultaneously. 20. Judgment debtors' non compliance with Order 21 rule 89 of the Code of Civil Procedure entitled the auction purchaser to get the sale in his favour confirmed. The impugned order is beset with O.P.(C)No.3722 of 2013 11 illegality. In the result, this Original Petition is allowed. The impugned orders are set aside. E.A.No.245 of 2013 filed by the judgment debtors (respondents 1 and 2) is dismissed and E.A.No.351 of 2013 filed by the auction purchaser(petitioner) is allowed. The sale in favour of the auction purchaser is confirmed. Sd/- **JUDGE** ## **K.ABRAHAM MATHEW** cms /True copy/ P.S.to Judge