RAJ MANI SINHA Vs. SURAJ KUMAR SINHA

JUDGEMENT

(1.) THESE two appeals have been directed against the order dated 16th December 1994 passed by Sri Viveka Nand Jha, Sub -ordinate Judge -IV, Patna in Misc. Case Nos. 29/31 of 1979. As both the cases arise out of a common order, they have been heard analogous and are being disposed of by this common judgment.

(2.) THE relevant facts for consideration in these appeals, in short, are that Rajmani Sinha and others had entered into a partnership with the respondents of the appeal. However, in course of time, the partners fell apart and so the partnership was dissolved. The dispute relating to arbitration agreement was referred to the arbitrator and the arbitrator gave the award. Then the appellant filed an application before the court of Sub -ordinate Judge, Patna, to make the award Rule of the court. The respondents filed objection and then an application filed by the appellant was registered as Title Suit no. 55 of 1967. The learned Sub -ordinate Judge, by his order dated 8th November 1971, set aside the award. There was an appeal before the Honble High Court (F. A No. 355/1971). This appeal was allowed and the judgment of the Sub -ordinate Judge was set aside and the matter was referred back to the court of Sub -ordinate Judge to make the award Rule of the court, subject to certain correction/modification in the award given by the Arbitrator. This judgment of the High Court was repeared in AIR 1973 Pat. 26. The respondents filed an appeal before the Honble Supreme Court (Civil Appeal No. 301/1973). During the pendency of this appeal, a stay order was passed in Civil Misc.Petition No. 10070/73. However, it was observed that the proceedings in the court of Subordinate Judge shall continue, but preparation of the final decree shall remain stayed. However, the Civil Appeal before the Honble Supreme Court was ultimately dismissed on 28th November, 1986, but before that the appellants had filed Execution Case No.5 of 1973. By the judgment in the M.A. No. 345 of 1971, the appellants were allowed certain monetary claims and so in the execution case, certain properties were attached for realisation of the monetary claims. Against this, order of attachment, respondents filed a petition and the court set aside the order of attachment and then the appellants filed Misc.Appeal No. 97 of 1973 which was heard by a Division Bench of this Court presided over by Honble the Chief Justice and Honble Mr. Justice S. K. Jha. This appeal was disposed of by a detailed order and in this Misc. appeal, it was held that the execution proceeding was valid and legal because rights and liabilities of the parties were well adjudicated in M.A. No. 345 of 1971 by the High Court and this decision amounted to decree within the meaning of Section 2(2) C.P.C. The stay of the preparation of final decree after the award is made rule of the Court will not defeat the adjudication of rights and liabilities of parties by the High Court being described as decree. The Misc. appeal filed by the appellant was, therefore, allowed. There after the respondents filed an application before the Honble Supreme Court in Civil Appeal No. 301(N) of 1975. praying to punish the contemners because in spite of stay order, court proceeded with the order of attachment of the decree. This application was numbered as Civil Misc. No. 7171 of 1975 but this was also rejected by the Honble Supreme Court by order dated 15th October 1976. However, the appellants proceeded with the execution case and got the attached properties sold. In the mean time, the respondents filed Misc. case before the lower court (Misc. Case Nos. 29 of 1975 and 31 of 1975) and one of the Misc. case was filed under Order 21 Rule 90 C.P.C, and the other u/s 47 C.P.C. However, the court of Sub -ordinate Judge passed an order dated 3rd December 1975 and directed the judgment -debtor respondent to deposit 12 1/2 per cent of the amount of sale so that their objection under Order 21 Rule 90 O P.C. may be heard. However, the respondents failed to deposit the cost as ordered by the Court. Still the learned Sub -ordinate Judge allowed both the Misc. cases of the respondents against which these two appeals have been preferred before this Court.

(3.) BOTH the parties addressed this Court at length regarding their respective cases and on principles governing the matters in controversy before the lower court and this Court. The first question which deserves consideration is whether there was, of course, a decree which was to be executed by the lower court. The application filed in the lower court for making the award Rule of the Court was dismissed firstly by the court of Sub -ordinate Judge. In the appeal preferred in the High Court (M.A. No. 345 of 1971), the High Court determined the rights and liabilities of the parties to the suit and to the proceedings before the Arbitrator and, thus, a monetary claim was allowed to the appellants. This High Court in M. A. No. 97 of 1973 further held that since there was already a decree within a meaning of Section 2(2) C.P.C, as decided by the High Court in M. A. No. 345 of 1971, that decree was executable even though no formal decree was prepared by the Sub -ordinate Judge, after making the award Rule of the Court. In the appeal before the Honble Supreme Court also, this judgment of the High Court was sustained. So, of course, there was a decree executable before the lower court and this Honble Court decided that this decree was executable. So the matter ends there. The next question is whether there was any fraud and irregularity in the sale and then the subsequent auction -sale of which the respondents had no notice. In this connection, order of the lower court directing the deposit of 12 1/2 per cent of the sale money, was not complied with. Order 21 Rule 89 C.P.C. has clearly mandated that whenever there is an application for setting aside the sale, the court may ask the appellants to deposit part of the sale money. Besides the same, Rule 90(3) C.P.C. stipulates that no application to set aside the sale shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Section 90(2) C.P.C. further stipulates that no sale shall be set aside on the ground of illegality or fraud in publishing or conducting it, unless on the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. It was not urged before me that the respondents were not noticed in the execution case and they had no knowledge of the same; rather it is apparent from the judgment that the respondents were prompt in pursuing the execution caseseeking setting aside of the attachment order and challenging the judgment passed by the Honble High Court as well up to the Honble Supreme Court. So it cannot be said without a pinch of salt that the respondents were prevented from raising objection, to the proclamation of sale or auction sale, before the proclamation or sale. Besides the above, the learned Subordinate Judge, in his impugned order dated 16th December 1994 failed to address himself to . the fact whether the respondents had sufferred any substantial injury on account of fraud or irregularity, attending the proclamation of sale or the auction sale. Since the Honble High Court itself has held, as mentioned earlier, that execution case was well maintainable u/s 47 C.P.C. and the learned Sub - ordinate Judge failed to consider the provisions of law as laid down under Order 21 Rules 89 & 90 C.P.C, l think the impugned order passed by him was vitiated by non -application of legal principles in its proper perspective. Therefore, I think the impugned order does not deserve to be allowed to stand.