PAREKH MANHARLALVRAJLAL Vs. BIMASHRI RAHIMBAKHT ADILKHANJI
HIGH COURT OF GUJARAT
PAREKH MANHARLAL VRAJLAL
BIMASHRI RAHIMBHAKHTE ADILKHANJI
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(1.) This petition is preferred by the original decree holder who had filed suit No. 2005 of 1949 in the court of the Civil Judge (J D.) Junagadh for obtaining decree on the basis of a mortgage deed. Ultimately the suit came to decreed against opponent no. 1 and 2 original J. D. In execution of said mortgage decree the properties of respondents nos. 1 and 2 were put to auction and the land in question was purchased by opponent no. 3 in a Court auction held by the Executing Court in execution of the decree passed in favour of the petitioner and against the respondents nos. 1 and 2. The auction sale in favour of opponent No. 3 was confirmed on 13-1-1978. Opponent No. 3 auction purchaser had purchased the property on a consideration of Rs. 13362.50 and he deposited the said amount in the Executing Court. It appears that after the auction sale was confirmed in favour of Opponent No. 3 the original J. D. opponents nos. 1 and 2 applied to the Executing Court to stay further proceedings in execution on account of the operation of the provisions of the Gujarat Rural Debtors Relief Act 1976 The said request of opponents nos. 1 and 2 was rejected by the Executing Court by its order dated 16-1-1978. The Original opponents nos. 1 and 2 thereafter approached this Court in C. R. A. No 179 of 1978. The said revision application was allowed by this Court on 27-12-1978 and the stay of execution proceedings was granted till the question of the status of opponents nos. 1 and 2 was determined by the competent authority under the Gujarat Rural Debtors Relief Act. It appears that thereafter the present opponent no. 3 auction purchaser gave an application Ex. 159 to the Executing Court requesting it to return the deposited amount of Rs. 36 51 to the auction purchaser opponent no. 3. The executing Court granted the request of the auction purchaser opponent no. 3 on his giving a solvent surety and understanding to the Court that if the application before the settlement officer was rejected and if the execution application was legally revived then he would immediately redeposit the entire amount of Rs. 36 51 in the Court and purchase the land in question if so ordered by the Court. It is the aforesaid order passed by the Executing Court which is impugned in the present revision application.
(2.) Mr. J. R. Nanavati learned advocate appearing for the petitioner decree holder contended that de hots the provisions of O. 21 rule 93 there is no power in the Executing Court to direct refund of the purchase amount deposited by the auction purchaser. In any event save and except when the sale of immovable property is set aside under rule 92 and as that contingency had not occurred the Executing Court had no jurisdiction to direct refund of the purchase amount to the auction purchaser. It is pertinent to note that the auction purchaser opponent no. 3 in whose favour the order of the Executing Court was passed has not chosen to contest the present revision application. Mr. P. V. Hathi learned Advocate appearing for the original judgment debtor opponents nos. 1 and 2 tried to support the order of the Executing Court by placing reliance on section 151 of the Civil Procedure Code.
(3.) A mere look at the relevant provisions of O. 21 shows that once a sale of immovable property is knocked down in execution of any decree under O. 21 rule 84 25 of the purchase money has got to be deposited by the auction purchaser immediately after the declaration of such sale in his favour. Under O. 21 rule 85 the balance of 75% of the purchase money has to be deposited by the auction purchaser in the Court before the Court closes on the 15th day from the sale of the property. Under O.21 rule 86 on any default made by the auction purchaser in depositing the aforesaid amount the deposit is liable to be forfeited is government and the property is liable to be resold. Order 21 Rule 92 provides that the Executing Court can make an order confirming the sale if the objection application under O.21 Rules 89 90 or 91 has not been made or has been made and disallowed. It is pertinent to note that in the present case such a stage had been reached by 30-1-1978 by which date the auction sale in favour of opponent no. 3 had been confirmed by the executing Court. Then follows Order 21 Rule 93 which says that in case the 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. Thus the question of re turn of purchase money to auction purchaser arises at the stage when the sale of immovable property is set aside under Rule 92. It is nobodys case that the sale in favour of opponent no. 3 has been set aside. Opponent No. 3s application before the Executing Court Ex. 159 says that he apprehended a possibility that in future the auction sale may be set aside. But that was a mere apprehension on his part. Such a stage had not been reached till then. Till the stage when the auction sale is set aside under Rule 92 is reached or till any other Contingency in which the auction sale in favour of opponent no. 3 becomes infective arises the auction purchaser has no right to claim refund or return of purchase money deposited by him in the Executing Court. The aforesaid provisions represent a complete Code and a comprehensive scheme and consequently the Executing Court could not in the meantime permit the auction purchaser to withdraw the deposited amount even though the sale in his favour had been confirmed by the Executing Court such an order could not have been passed under S. 151 C. P. C. so as to nullify this comprehensive scheme and to render it unworkable. It is now well settled that the inherent power of the Court cannot override the express provisions of the law. Examining the scheme of S. 151 C. P. C. in the light of Order 9 Rules 6 7 and 13 the Supreme Court in the case of Arjun Singh v. Mohinder Kumar reported in A. I. R. 1964 S. C. 993 observed that if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the power of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. Looking to the complete scheme of O. 21 rules 84 to 94 it appears that inherent power of the court cannot be pressed in service so as to short circuit this complete scheme. In fact under the provisions of O. 21 rule 93 on the confirmation of sale by the Executing Court the same becomes absolute in favour of opponent no. 3. Under the circumstances until the contingency as provided by O.21 rule 93 as indicated above arises or until the stage is reached when it is found that the auction sale cannot take effect the auction purchaser has no right to claim a refund of the purchase money deposited by him. Consequently the order passed by the Executing Court is obviously without jurisdiction even though safeguards may have been imposed thereunder. If the executing Court had no power to pass such an order the order would be obviously incompetent. Under the circumstances this revision application will have to be allowed and the order passed by the learned Civil Judge S. D Junagadh on 4-5-1978 below application Ex. 159 in Regular Darkhast No. 1 of 1960 will have to be set aside. Mr. Hathi submitted that if this revision application is to be allowed this Court may be pleased to pass proper orders to safeguard the interest of all concerned. Mr. Hathi pointed out that at the time of admitting this revision application this Court had directed on 4 that pending the hearing of this petition the Executing Court shall be at liberty to invest the amount in question in short term deposit so as to earn interest. He had no objection if the same arrangement was continued till the competent authority under the Gujarat Rural Debtors Relief Act decided the contentions raised by the judgment debtors. Mr. J. R. Nanavati appearing for the petitioner decree holder also had no objection if such an order is passed and hence I direct that during the currency of the stay of execution proceedings as granted by this Court in C. R. A. No. 179/78 the amount in question should remain deposited in short term deposit and the executing Court may be at liberty to invest or reinvest the said amount from time to time so as to earn interest. It is obvious that in the meantime the said amount shall not be paid either to the auction purchaser or to the petitioner and shall remain deposited as aforesaid till the execution proceedings remain stayed during the pendency of the Gujarat Rural Debtors Relief Act proceedings. Rule is accordingly made absolute. In the facts and circumstances of the case there will be no order as to costs.Rule made obsolute.;
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