CHALLAMANE HUCHHA GOWDAversusM.R. TIRUMALA AND ANR.

                                                              "
A                    CHALLAMANE HUCHHA GOWDA
                                        v.
                         M.R. TIRUMALA AND ANR.

                              DECEMBER 8, 2003
B
                [S. RAJENDRA BABU AND RUMA PAL, JJ.]

         Code of Civil Procedure, 1908; Order 21 Rules 89 & 92:

         Execution ofdecree-Sale ofscheduled properties ofjudgment debtor
C by Court auction-Entire decretal amount with other cost paid by Judgment
    Debtor to Decree holder with objections against confirmation of sale--
    Court directing judgment debtor to pay solatium as well to auction
    purchaser-Not accepted by auction purchaser who preferred an applica-
    tion for confirmation of side-Execution Court treating objections filed by
D   the jl(,dgment debtor as a petition under relevant provisions of law and set
    aside the sale-Reversed by the First Appellate Court-Revision petition
    dismissed by High Court--On appeal, Held: Rule does not provide filing
    of application in ci particular form for setting aside sale-Deposit of
    decretal amount is sufficient compliance with provisions of /aw-Hence,
E   execution Court rightly set aside the sale of properties.

          The scheduled properties of the appellant-Judgment Debtor wc!re
    put up for auction by the executing Court in execution of a decree in
    favour o( respondent No. 2, the decree holder. In the meanwhile, the
F   Judgment Debtor paid entire decretal amount with cost to the Decree
    holder, he also filed a memorandum of objection against confirmation
    of sale by .of properties and prayed to close the execution proceedings.
    The Execution Court directed the Judgment Debtor to pay solatium
    to auction-purchaser. However, auction purchaser did not accept the
    sloatium amount but preferred an application under Order 21 Rult! 92
G   CPC for confirmation of sale. The Judgment Debtor, however, filed! an
    application to treat the memo of objection filed by him earlier as an
    application under Order 21 Rule 89 CPC and also filed another fresh
    application for setting aside the sale. The Execution Court observed
    that the entire decretal amount was paid by the Judgment Debtors and
H   sale was yet to be confirmed. Hence it set aside the sale. Auction
                                        506
                       C.H. GOWDA v. M.R. TIRUMALA                      507

    ,,. purchaser preferred an appeal which was allowed by the First Appel- A
        late Authority. Judgment Debtor preferred a Revision Petition which
        was dismissed by the High Court. Hence the present appeal.

           Allowing the appeal, the Court

            HELD : 1.1. Execution is the enforcement, by the process of the B
      Court of its orders and decrees. This is in furtherance of the inherent
      power of the Court to carry out its orders or decrees. Rule 89 of Order
      21 CPC, is the only means by which a Judgment Debtor can escape
      from a sale that has been validity carried out. Object of the rule is to
      provide a last opportunity to put an end to the dispute at the instance C
      of Judgment Debtor before the sale is confirmed by the Court and also
      to save his property from dispossession. The purpose of Order 21 is
      to ensure carrying out of the orders and decrees of the Court. Once
      the Judgment Debtor carried out the order or decree of the Court, the


-     execution proceedings will correspondingly come to an end. The Rule D
      does not provide that the application in a particular form shall be filed
      to set aside the sale. Even a memo with prayer for setting aside sale
      is sufficient compliance with the said Rule. Therefore, upon the
      satisfaction of the compliance of conditions as provided under Rule 89,
      it is mandatory upon Court to set aside the sale under Rule 92 and the
      Court shall set aside the sale after giving notice under Rule 92(2) to E
      all affected persons. [512-A-B-C; D-E-FJ

            Raofi Baburao v. Bansilal, AIR (1919) Bombay 130; Venkatasubba
      Rao v. Narayana Rao, AIR (1922) Madras 83; Ram Auta v. Shea Piarey
      Lal, AIR (1925) Oudh 411; Pachiayae v. Vallimuthu, AIR (1925) Madras F
      639; Jyotish Chandra Skidar & Ors. v. Surendra Nath Das & Anr., AIR
      (1939) Calcutta 153; Mahaboob Khan v. Majid Husain, AIR (1939)
      Allahabad 241; Asan Kutti v. Koyaman Kutti, AIR (1937) Madras 342;
      Kishun Lal v. Hardevi Kaur, AIR 33 (1946) Oudh 45; Dr. Parmanand
      Verma v. Satnarain Prasad, AIR 39 (1952) Patna 99; Hirania v. Ram G
      Piari, AIR 37 (1950) Allahabad 367; Maruti Shidalappa v. Shivappa
      Mallappa, AIR (1967) Bombay 39 and Behari Lall v. G.K. Pathak, AIR
                        1
      (1972) Patna 347, approved.

          1.2. The factum of the payment of entire decree amount to the
      Decree Holder with cost as not looked into by the First Appellate Court H
    508                SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A or by the High Court nor did it attach any value to the memo of
    objections for setting aside the sale. It is a settled position of' law that
    a mere non-mentioning or wrong mentioning of a provision in an
    application is not a ground to reject an application, since there is no
    bar in treating the objection as an application to setting aside the sale.
B   Setting aside of sale by the execution Court is perfectly in tune with
    the Code. Hence, the order of the High Court affirming order of the
    Fil"st Appellate Court is set aside and that of the Executing Court is
    restored. (513-B-C-D)

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9614 of
c   2003.

         From the Judgment and Order dated 8.10.99 of the Karnataka High
    Court in C.R.P. No. 3842 of 1995.

          R.S. Hedge, Somiran Sharma and P.P. Singh for the Appellant.
D
          S.N. Bhat and D.P. Chaturvedi for the Respondents.

          The Judgment of the Court was delivered by

E         RAJENDRA BABU, J. Leave Granted.

          In execution of a decree the executing Court brought the prope1ties
    owned by the Petitioner-Judgment Debtor for sale. Proclamation was
    punished on 19.07 1992. On ?.6.08.1992 the scheduled properties were put
    up for auction. The final bid was offered by respondent No. 1 in Court on
F   28.08.1992. On 25.09.1992 the Petitioner-Judgment Debtor paid the entire
    decretal amount together with the cost to the Respondent No.2 - Decree
    Holder accompanied by memorandum of objections for confirmation of
    sale. A memo was also filed praying to close the execution proceedings.
    On 30.10.1992 another Memo was filed in the Executing Court reporting
G   the payment of the decree amount. Then the executing Cou1t directed the
    Petitioner - Judgment Debtor to pay solatium to the Respondent No. l -
    Auction furchaser. Executing Court also noted that the Respondent
    No. 1 - Auction Purchaser was not ready to accept the solatium amount.
    In the meanwhile,· on 13.11.1992 Respondent No. l - Auetion Purchaser
H   filed an Interlocutory Application under Order 21, Rule 92 of CPC for
          C.H. GOWDA v. M.R. TlRUMALA [RAJENDRA BABU, J.]                   509

    confirmation of sale. On 24.07.1993 the Petitioner - Judgment Debtor tiled A
    an application to treat the earlier objection dated 25.09.1992 as an
    application under Order 21, Rule 89 ofCPC. However a separate application
    was also tiled under Order 21, Rule 89 of CPC with a prayer for condoning
    the delay. The execution Cou1t held that the objection tiled by the
    Petitioner- Judgment Debtor on 25.09.1992 could be treated as application B
    under Order 21, Rule 89 of CPC. Predominantly noting the fact that the
    Petitioner - Judgment Debtor has paid the entire decree amount and that
    the sale was yet to be confirmed the executing Court set aside the sale.
    Accordingly the execution proceeding was closed.

          On Appeal preferred by the Respondent No. I - Auction Purchaser, C
    the First Appellate Court reversed the Order passed by the Executing Court.
    Aggrieved by the findings of the first Appellate Comt, the Petitioner -
    Judgment Debtor moved a Civil Revision Petition before the High Court.
    High Court found that an objection can never be treated as an application
     within the meaning of Order 21, Rule 89 or 90; that the later application D
     was filed is barred by limitation; that the section 5 of Limitation Act is not
    applicable in the instant case; that the deposit was not made within the
    prescribed date; that there is no evidence to the effect that the value of
    property is more than the bid I purchase price; that the question of adequacy
    of the sale price is irrelevant as it is outside the scope of Rule 89 of Order E
•   21. For these reasons the revision petition was dismissed. This Judgment
    is impugned before us.

         The only question that requires our consideration in this case is
    whether the setting aside of sale by the executing Court is correct or not.   F
    Under Order 21 Rule 89(1) ofCPC and application to set aside sale under
    Rule 89(1) can be filed. The said provision reads as under :

             R. 89, or. 21: 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 G
             sale or at the time of making the application, or acting for on in
             the interest if such person, may apply to have the sale set aside
             on his depositing in Court, -

             (a)   for payment to the purchase, a sum equal to five per tent H
    510                     SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                   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 which the
                    sale ordered, less any amount which may, since the date of
                    such proclamation of sale, have been received by the decree
B                   holder.

          The follow up action to Rule 89(1) is pl·ovided under Rule 92(2)
    of Order 21, which reads as follows :

c            "(I) ..... .

             (2) Where such an 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 thirty days from date of sale, or in case
             where the amount deposited under rule 89 is found to be deficient
D            owing to any clerical or arithmetical mistake on the part of the
             deposit and such deficiency has been made good within such time
             as may be fixed by the Court, the Court shall make an order setting
             aside the sale :                                                        •
E            Provided that no order shall be made unless notice of. the
             application has been given to all persons affected thereby."

          In Raoji Baburao v. Bansilal, AIR (1919) Bombay 13, Venkatasubba
    Rao v. Narayana Rao, AIR (1922) Madras 83 and Ram Autar v. Shea
F   Piarey Lal, AIR (1925) Oudh 411, and Pachiayae v. Vallimuthu, AIR
    (1925) Madras 639, where judgment debtor deposited entire decretal
    amount, cost and compensaion in court but could not file an application
    to set aside sale and his contention that the deposit of money itelf could
    be treated as an application to set aside sale was rejected. Diametrically,
    opposite view has been expressed in several decisions which we may
G   briefly notice.

          In Jyotish Chandra Skidar & Others v. Surendra Nath Das &
    Another, AIR ( 1939) Calcutta 153, the. Court treated Cha/Zan deposited by
    the Judgment Debtor under Rule 89 as an application. In Mahaboob Khan "'
H   v. Majid Husain, AIR (1939) Allahabad 241, the tender for deposit of
      C.H. GOWDA v. M.R. TIRUMALA [RAJENDRA BABU, J.]                  511

money in Court itself was held to be an application for the reason that tht; A
presentation of the tender form itself clearly shows the intention of the
Judgment Debtor to set aside the sale. Here the Cou1t also found that Rule
89 only insist for two things, - (a). Deposit for Decree Holder and (b).
Deposit for the purchaser by way of compensation. Couit clearly said that
there is not third requirement of an application under Rule. Money deposit B
itself was treated as an application in Asan Kutti v. Koyaman Kutti, AIR
(1937) Madras 342. In Kishun Lal v. Hardevi Kaur, AIR 33 (1946) Oudh
45, the Court was of the opinion that -"the prayer that an auction sale to
be set aside is implicit in the making of deposit... We do not think that the
deposit in order to be valid must necessarily be made along with C
application." In the view we .propose to take, we need not examine which
of these two views is correct.

      There is a third view taken in situations arising as in the present case.
In Dr. Parmanand Verma v. Satnarain Prasad, AIR 39 (1952) Patna 99 D
the Judgment Debtor deposits the decretal amount and compensation along
with a petition, but with no express prayer to set aside the sale. Here the
Court ruled that in such circumstances the petition as a whole has to be
considered otherwise thee would be no reasonable meaning to such ~n
application. So is the decision in Hirania v. Ram Piari, AIR 37 ,(1950)
Allahabad 367, wherein an application to deposit money in Court itself was E
treated as an application to set aside the sale. The Bombay High Court
insisted upon an application made under Order 21 Rule 8(2) in Raoji
Baburao v. Bansilal case (supra) but in Maruti Shidalappa v. Shivappa
Mallappa, AIR (1967) Bombay 39, treated purshis along with money
deposited in the Court as an application to set aside sale. Court noted that F
though Order 21 Rule 89 CPC requires an application to be made for setting
aside the sale, nothing is stated in the rule regarding the made of application
and then held that purshis contains an implicit prayer for setting aside the
sale and the absence of a formal application does not amount to non-
compliance of the provision. In Behari Lall v. G.K. Pathak, AIR ( 1972) G
Patna 347, the High Court ruled that " ... application by Judgment Debtor
whereby a prayer was made for passing the challan for deposit of requisite
money, by necessary implication there was a prayer to do justice by setting
aside the sale." Similar view ws taken in Pratap Kishore v. Ram Chandra,
AIR (1969) Orissa 278 and in Durga Prasad Singh v. Ram Lakhan, AIR H
    512                 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A (1995) Allahabad 160.
           Execution is the enforcement, by the process of the Court of its orders
    and decrees. This is in furtherance of the inherent power of the Court to
    carry out its orders or decrees. Order 21 of CPC deals with the elaborate
B   procedure pertaining to the execution of orders and decrees. Sale is one
    of the methods employed for execution. Rule 89 of Order 21 is the only
    means by which a Judgment Debtor can escape from a sale that has been
    validly carried out. Object of the rule is to provide a last opportunity to
    put an end to the dispute at the instance of Judgment Debtor before the
    sale is confirmed by the Court and also to save his prope11y from
C   dispossessing. Rule 89 postulates two conditions: they are depositing - (1 ).
    of sum equal to five percent of the purchase money to be paid to the
    purchaser, (2). of the amount specified in the proclamation of sales less
    any amount received by the decree holder since the date of such proclamation,
    in the Court. If these two conditions are satisfied the Court shall make an
D   order for setting aside the sale under Rule 92(2) or Order 21 of CPC. on
    an application made to it. In other words then there will be compliance of
    Court's order or decree that is sought to be executed. Because the purpose
    of the Order 21 is to ensure that carrying out of the orders and decrees of
    the Court. Once the Judgment Debtor carried out the order or decree of
E   the Court, the execution proceedings will co1Tespondingly come to an end.
    It is to be noted that the Rule does not provide that the application in a
    particular form shall be filed to set aside the sale. Even a memo with prayer
    for setting aside sale is sufficient compliance with the said rule. Therefore,
    upon the satisfaction of the compliance of conditions as provided under
    Rule 89, it is mandatory upon Court to set aside the sale under Rule 92.
F   And the Court shall s~t aside the sale after giving notice under Ruic 92(2)
    to all affected persons.

          In the case on hand, it is not disputed that within the stipulated period
    of one month from the date of final bid in Court, the Petitioner - Judgment
G   Debtor paid the decree amount to the Decree Holder and also filed a memo
    for setting aside the sale in the form of objections. Executing Court noted
    this aspect. By this payment the requirement under Rule 89( 1)(b) of Order
    21 was fulfilled. It is also noted that the Respondent No. 1 - Auction
    Purchaser refused to accept the solatium and he subsequently filed
H   Application for confirmation of sale. Meanwhile the executing Court
      C.H. GOWDA v. M.R. TIRUMALA [RAJENDRA BABU, J.]                 513

ordered for the deposit of solatium with the Court. This deposit complied A
with the second requirement under Rule 89(1)(a) of Order 21. Admittedly,
on 25.09.1992 the Petitioner - Judgment Debtor filed his objections to the
sale and also paid the entire decree amount together with the cost to the
Respondent No. 2 - Decree Holder. The factum of the payment of entire
decree amount to the Decree Hold~r with cost Was not looked into by the B
First Appellate Court or by the High Court nor did it attach any value to
the memo of objections for setting aside sale. It is also a settled position
of law that a mere non-mentioning or wrong mentioning of a provision in
an application is not a ground to reject an application, since, there is no
bar in treating the objection (filed in the present case) as an application C
to setting aside the sale. Hence the setting aside of sale by the execution
Court is perfectly in tune with the Code. In this view of the matter it is
not necessary to look into other aspects agitated by the contesting parties
not to look into the authorities cited before us. Accordingly the order of
the High Court affirming that of the First Appellate Court is set aside and
order of the Executing C9urt is restored.                                    D
     Appeal allowed accordingly.

S.K.S.                                                   Appeal allowed.