M.A. No. 2398/2003
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HIGH COURT OF MADHYA PRADESH JABALPUR
SB: Hon'ble Mr. Justice R.K. Gupta
M.A. No. 2398/2003
M/s ACME Papers Limited : APPELLANT
-Versus-
M.P. Financial Corporation : RESPONDENTS
and another
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For the Appellant : Mr. Rajesh Pancholi, Advocate
For the Respondent No.1 : None present
For the Respondent No.2 : Mr. Ravish Agrawal, Sr. Advocate
with Mr. K.S. Jha, Advocate
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O R D E R
(09/07/2010)
In this appeal preferred under Order 43 Rule (1)(j) of the
Code of Civil Procedure, 1908 the appellant has challenged the
order dated 29.10.2003 passed by the learned District Judge,
Sehore in MJC No. 16/1985 whereby the application of the
appellant under Order 21 Rule 90 read with Section 151 of the
CPC has been dismissed.
2. The facts leading to the present appeal are that the first
respondent, namely, M.P. Financial Corporation filed a Misc.
Judicial Case No. 26/1982 under Section 31 of the State Financial
Corporation Act, 1951 against the appellant for sale of the
mortgaged property. The said application was opposed by the
appellant by filing reply as contained in Annexure A-2, however, a
direction was issued on 12.11.1984 for disposal of the
hypothecated property under Section 32(7) of the said Act.
Thereafter, the respondent No.1 also sought for publication of
notices of auction for disposal of the property under Section 32(8)
of the Act. Yet another application was moved on behalf of the
respondent No.1 for sale proclamation under Order 21 Rule 66 of
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the CPC for land ad-measuring 62.2 Acres situated at Karbala in
Dist. Sehore including pants & machinery and building. The
auction proceedings held on 19.9.1988, 20.9.1988 and 21.9.1988
did not materialize the sale of the aforesaid property, therefore,
the court below was of the view that further auction would be
improper. However, vide order dated 22.9.1988 contained in
Annexure A-5 the respondent No.1 was directed to file separate
application for private sale and participation in the auction to offer
bid. Thereafter, a Commissioner was appointed to furnish report
as regards the property in dispute after spot-inspection. The
Commissioner submitted its report on 16.8.1993. Thereafter, it is
stated that a bid for a sum of Rs.80,25,000/- was received from
one Shri Ramgopal on 18.8.1993. Thereupon, a report was called
from the District Registrar, Sehore with regard to the market
value of the aforesaid 62.2 acres of land wherein the market value
of the property was assessed at Rs.2. Lac per acres. The Court
below vide its order dated 26.8.1993 adjourned the auction
proceedings on the found that the highest bidder of the property,
namely, Shri Ramgopal did not appear to be bona fide purchaser
and accordingly fresh advertisement was directed to be published
in the daily newspapers of Indore and Bhopal.
3. The respondent No.1, M.P.F.C., has not denied the objection
raised by the appellant before the Court below that the
confirmation of the sale was stayed by the Delhi High Court vide
order dated 5.7.1993. Submission of the appellant is that despite
there being orders of stay on the confirmation of sale, the auction
proceedings were allowed to be continued by the Court below on
18.11.1997 to 22.11.1997 and bid was closed in favour of one Shri
Shankarlal Laddha for a sum of Rs.48,52,001/-. An objection as
contained in Annexure A-11 was raised on behalf of the appellant
that despite there being stay on the confirmation of sale and that
even before confirmation of the sale the auction purchaser had
started demolishing the building, plant & machinery and scrap
was being transported out of Sehore. Against the said wrongful
removal of the building materials and machinery by the auction
purchaser an FIR, Annexure A-12 was also lodged. However, the
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the auction purchaser in connivance with the respondent No.1 did
not deposit requisite 25% of the bid amount in the Court and the
Court below, therefore, set aside the auction bid vide order dated
9.2.1998, Annexure A-16. As per the orders of the Court below the
appellant submitted the list of stolen properties on 27.4.1998,
Annexure A-17.
4. It is submitted that vide order dated 20.1.1999 contained in
Annexure A-21, the Court below directed to call for auction of the
disputed properties and thereafter by order dated 3.4.1999,
Annexure A-22, the sale warrant was directed to be issued. The
appellant moved an application for recall of the order dated
3.4.199 and prayed for a direction to the police authorities to
register the criminal case about the stolen properties. On the basis
of the report of the Nazarat, the Court below vide order dated
13.8.1999, Annexure A-24, held that the last bid of Rs.16,69,000/-
so made by respondent No.2 Ajay Kumar and Brothers is to be
concluded in their name as there is no possibility of other bid of
higher amount.
5. Being aggrieved by order dated 13.8.1999 the appellant
approached this Court by filing a Civil Revision which was
registered at Civil Revision No. 2177/1999. The said revision was
dismissed on 22.4.2003 against which the appellant filed a MCC
No.700/2003. The said MCC was also dismissed by this Court by
Annexure A-27 dated 1.9.2003 holding that order impugned in the
civil revision related to the acceptance of the bid and the same
being an interlocutory order, the revision preferred by the
appellant was not maintainable as the remedy was available under
Order 21 Rule 89, 90 of the CPC. Pursuant thereof, the appellant
filed application under Order 21 Rule 90 of the CPC which is filed
as Annexure A-28 to the present appeal. It is contended that on
28.10.2003 the respondent No.1 filed reply to the said application
and the Court below without granting sufficient opportunity to the
appellant to go through the reply, heard the matter next day on
29.10.2003 and dismissed the application of the appellant under
Order 21 Rule 90 of the CPC and directed for issuance of sale-
M.A. No. 2398/2003
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certificate in favour of the auction purchaser. Being aggrieved by
the order dated 29.10.2003 the appellant is before this Court.
6. Learned counsel for the appellant submitted that in the
present case the order impugned passed by the Court below is
illegal. According to him, there had been no adequate price
received and yet the auction has been confirmed by the Court
below. The Court below while conducting the auction has
committed serious illegalities.
7. On behalf of the respondent No.2 it is contended that
application preferred by the appellant under Order 21 Rule 90 of
the CPC itself was barred by limitation. It is contended that once
the application is barred by limitation, the order impugned is
proper.
8. The rival submissions made on behalf of the parties are
considered. It is to be seen that the application under Order 21
Rule 90 was moved before the court below against the auction on
24.9.2003 whereas the auction took place on 13.8.1999. The final
bid was accepted and 25% of the amount was deposited and
remaining 75% was also deposited on 17.8.1999. It is to be seen
that for the purposes of moving application under Order 21 Rule
90 of the CPC the provisions as contained under Article 127 of the
Limitation Act would be applicable and commencement of the
period of limitation for the said purpose is the date of sale. Thus,
the application filed beyond the period of limitation cannot be
entertained.
9. Shri Rajesh Pancholi, learned counsel for the appellant
submitted that in the present case the respondent has not taken a
plea before the Court below that the application under Order 21
Rule 90 of the CPC was barred by limitation, therefore, now at this
stage the respondents cannot be permitted to raise the objection
about the limitation. The counsel has invited my attention to the
decision rendered by the Apex Court in Nani Gopal Paul v. T.
Prasad Singh and others, AIR 1995 SC 1971 wherein it is laid
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down a view that the Court or the appellate Court would not
remain a mute or helpless spectator to obvious and manifest
illegality committed in conducting Court sales. On the strength of
the ratio laid down in the said case it is contended by him that if
there are illegalities while conducting the auction sale then it may
not be necessary to move application under Order 21 Rule 89 or
90 or under Section 48 of the CPC but the Court can suo motu
take an action. Further submission of the counsel for the appellant
is that since the appellant was prosecuting the remedy before this
Court by filing revision, therefore, that period has to be excluded
in view of Section 14 of the Limitation Act.
10. Per contra, Shri Ravish Agrawal, learned senior counsel for
the respondent No.2 submitted that by virtue of Section 3 of the
Limitation Act even though the defence with regard to limitation is
not set up still the application can be dismissed on the ground of
limitation, if any, filed after the prescribed period of limitation.
11. By virtue of Article 127 of the Limitation Act the limitation
prescribed for filing application for setting aside sale is 60 days
from the date of sale. Admittedly, in the present case the sale has
taken place on 13.8.1999 and the application for setting aside the
sale was filed on 24.9.2003. I have carefully perused the decision
rendered in Nani Gopal Paul (supra). In the said case, an appeal
was preferred to the Division bench of the High Court against the
order of the learned single Judge exercising the original
jurisdiction and while deciding the said appeal the Division Bench
came to the conclusion that the sale was vitiated due to the matter
in which the single Judge dealing with the Company Law matters
passed the orders in his Chamber. The Division Bench came to the
conclusion that though the property was sold for a sum of Rs.60
lakhs but there had been certain other higher offers but same
were not paid any heed and yet the auction was conducted. On
that basis, the Apex Court held that once there are manifest
illegalities in conducting the Court sale then the Court may
interfere. In Nani Gopal Paul’s case (supra) the Apex Court
further held that as against the auction price of Rs.60.00 Lac only
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Rs.5.00 Lac were deposited and balance amount was assured to be
deposited only after delivery of possession. That was found to be
illegal. In the present case, the auction was held on 13.8.1999 and
25% of the auction price was deposited by the second respondent
and rest of the 75% was also deposited on 17.8.1999. Thus, in the
present case whole of the amount was deposited and there was no
illegality as such.
12. Apart from the aforesaid, whereas also in the present case
against the auction held on 13.8.1999 a revision was preferred
before this Court which was registered as Civil Revision
No.2177/1999. The said revision was admitted and further
proceedings were stayed by order dated 24.9.1999. The revision
was dismissed on 22.4.2003 holding that the civil revision is not
the remedy but the remedy is available to the appellant under
Order 21 Rule 90 by moving an application for setting aside the
sale. Thereafter, the appellant filed application for recall of the
order dated 22.4.2003 which was registered as MCC No.700/2003.
The order under revision dated 22.4.2003 was upheld and the
MCC was also dismissed. The record of the MCC was called by this
Court for verification which revealed that it as filed on 13.8.2003.
In the present case, the provisions as contained under Order 21
Rule 90 of the CPC do not empower to set aside the sale by
proceeding suo motu. It provides for moving an application within
a period of 60 days in view of Article 127 of the Act and as the
limitation commences from the date of auction.
13. The Apex Court in Ram Chandra Arya v. Man Singh and
another, AIR 1968 SC 954 considered the limitation for filing
application to set aside the sale. The aforesaid question was
considered in the light of the fact whether a stranger to the suit
being the auction purchaser of the judgment-debtor’s immovable
property in execution of an ex-parte money decree would be
entitled to a confirmation of sale under Order 21 Rule 92 of the
CPC. The Court while dealing with the said issue also held that the
law makes ample provision for protection of the interest of the
judgment-debtor, when his property is sold in execution. He can
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file application for setting aside sale under the provision of Order
21 Rule 90 of the CPC. If no application is made and when such
application was made and disallowed, the Court has no choice but
to confirm the sale.
14. In Challamane Huchha Gowda v. M.R. Tirumala and
Another, (2004) 1 SCC 453, their Lordships of the Apex Court
have explained the purpose behind Order 21 of the CPC and in
para-9 their Lordships have held as under:-
“9. 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
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 property
from dispossession. 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 lass
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 order
for setting aside the sale under Rule 92(2). of 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
Rule 21 is to ensure the 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. 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. And the Court shall set
aside the sale after giving notice under Rule 92(2) to all
affected persons.”
15. As we have seen, in the present case the judgment-debtor
has not deposited the amount under the decree, therefore, the
Court proceeded to auction the property. On the basis of the facts
as enumerated above, it is clear that the application was not filed
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within 60 days from the date the auction was held and thus, it is
barred by limitation.
16. In this reference, the judgment passed in the case of
Chandra Pal v. Bharat Singh and another, AIR 2005
ALLAHABAD 75 is also relevant wherein the question of limitation
of filing application under Order 21 Rule 90 of the CPC was taken
into account and when the said application was held beyond the
period of limitation, said application was dismissed on the ground
of limitation.
17. The next question arises in the present case whether the
appellant shall be entitled to the benefit of Section 14 of the
Limitation Act. The auction in the present case has taken place on
13.8.1999 and the civil revision was filed before this Court and
this Court on 24.9.1999 directed that further proceedings shall
remain stayed. Ultimately, the said revision was dismissed on
22.4.2003 by holding that the revision is not maintainable and
remedy is under Order 21 Rule 90 yet the appellant has not
chosen to prefer any application immediately thereafter and within
a reasonable period. On the contrary a review application was
filed on 13.8.2003 which was also rejected on 1.9.2003 and then
the application is preferred on 24.9.2003. In this background, if a
party is claiming benefit of Section 14 as a wrong forum was
chosen to file the civil proceedings which was not maintainable
against the impugned order then as per Section 14 further
requirement of said Section is that the said proceedings were
chosen and were taken up with due diligence. No such thing is
found in the present case. Mere prosecution of remedy by itself
would be sufficient to ignore the period of limitation spent in
prosecuting the remedy before a wrong forum.
18. Section 5 of the Limitation Act shall have no application
because Section 5 itself provides that if any appeal or any
application, other than an application under any of the provisions
of Order XXI of the CPC, 1908, may be admitted after the
prescribed period, if the appellant or the applicant satisfies the
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court that he had sufficient cause for not preferring the appeal or
making the application within such period. Thus, Section 5 itself
excludes the extension of prescribed period in relation to
application under Order 21 of the CPC.
19. The question as such has to be considered in the light of
Section 14 of the Act. It is to be seen that if the commencement of
proceedings is before the period of limitation expires then there
may be a question of applying Section 14 of the Limitation Act.
Though initially the revision was preferred against the order dated
13.8.1999 within a period of limitation but ultimately when the
said revision was dismissed on 22.4.2003 then review application
was filed on 13.8.2003 which was rejected on 1.9.2003. the filing
of the review application was not within a period of limitation and
was beyond the period of 60 days because the revision was
dismissed on 22.4.2003 and the review was filed on 13.8.2003.
The review application for recall of the order passed in revision
itself was after the period of limitation has expired. Thus, there is
no question that the proceedings were commenced before the
limitation expired. Therefore, the benefit of Section 14 of the Act
shall not be available. That apart, when this Court while
dismissing the revision ultimately held that the civil revision is not
maintainable as the remedy was available under Order 21 Rule 90
of the CPC then there was no justification and the reason to file
the review application and that too after the period of limitation of
60 days. If the application would have been preferred immediately
within 60 days from 22.4.2003 then the position would have been
different. No application within 60 days was filed from 22.4.2003.
On the contrary, review application was filed on 13.8.2003 when
the period of 60 days limitation has already expired much before
filing of review application for recall of the order dated 22.4.2003.
It is to be seen that the appellant filed successive applications
before the Court; revision and then the review application when
the revision itself was held to be not maintainable.
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20. On behalf of the respondent No.2 it is contended that this
Court while admitting the revision passed the order on 24.9.1999
wherein further proceedings were stayed. While staying the
further proceedings no stay order was passed by this Court that
the appellant shall not file any application under Order 21 Rule 90
but despite that no effort was made by the appellant to prefer any
application. Therefore, the entertaining the revision by this Court
will not give any benefit to the appellant to extend the period of
limitation of 60 days to file application under Order 21 Rule 90 of
the CPC against the sale which has taken place on 13.8.1999.
21. This Court in Brijkishore v. Kishore Singh and another,
1972 M.P.L.J. 719 has dealt with the issue relating to good cause
when a competent Advocate/counsel carefully gave an advice to a
party to choose a forum and if the party acts on the said legal
advice then even though a wrong forum is chosen under wrong
advice of a counsel then it will constitute a good cause. The
paragraph 5 from the said decision reads, thus:
“At the very outset, the learned counsel for the decree-
holders raised a preliminary objection that the appeal in
the lower Court was barred by time and that there was
no good cause for extension of time under section 5 read
with Section 14 of the Limitation Act because, although
the appellant may have acted under the advice of legal
practitioners in filing a review, it could not be said that
he did so after obtaining such advice from competent
legal practitioners who had taken reasonable care to
ascertain the true legal position. In support of this
contention, reliance is laced upon Mariambai v.
Hanifabai. That the appellant acted under the advice of
legal practitioners is clear from the two affidavits filed in
the case, one of them being from an Advocate, Shri
Khakad. The question was not whether an appeal lay
against an order passed by the Court of first instance.
The real question was whether the appellant could claim
to be the legal representative of the judgment-debtor to
file an appeal against that order for the purpose of
raising the question he did. In that sense, the question
was not so straight or clear that only one answer could
be given without any possible doubt or hesitation.
Therefore, I am of the view that the advice given to the
appellant, on which he acted in filing a revision, is not
one which could not have been given by any other
competent and careful legal practitioner. That being so,
the lower appeal Court was right in extending the time
for filing the appeal to the extent necessary.”
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22. In this context, it would be relevant to see whether for the
purposes of attracting the benefit of Section 14 of the Limitation
Act is there any material produced before this Court that the
appellant has acted upon a wrong advice given by his counsel after
carefully going through the provision to prefer the revision. A
close scrutiny of the record reveals that no material is placed on
record in this regard. The appellant has neither filed his affidavit
nor has filed the affidavit of the counsel to show that the civil
revision against the order of sale dated 13.8.1999 was preferred in
the High Court under a wrong legal advice. Therefore, in view of
the law laid down by this Court in Brijkishore (supra) it cannot
be presumed that the revision was preferred before this Court
under a wrong advice. However, as this Court while dismissing the
revision by its order dated 22.4.2003 has held that the civil
revision is not maintainable then thereafter there is nothing on
record to show that the counsel for the appellant again advised
him to file review as according to him the application under Order
21 Rule 90 was not maintainable. In the absence of any material as
such it is very difficult to conceive that a wrong forum was chosen
by the appellant due to any wrong advice of the counsel which was
given after due care and caution.
23. In the case of Ramlal and others v. Rewa Coalfields Ltd.,
AIR 1962 SC 361, the Apex Court has not only considered the
scope of Section 5 and 14 of the Limitation Act but has
emphasized that even after sufficient cause has been shown a
party is not entitled to the condonation of the delay as a matter of
right. The proof of a sufficient cause is a condition precedent for
the exercise of the discretionary jurisdiction vested in the court. If
the sufficiency of cause is shown then this Court has to inquire
whether in his discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may
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regard as relevant. Reliance is placed upon para 12 of said
decision, which is reproduced as below:
“It is, however, necessary to emphasise that even after
sufficient cause has been shown a party is not entitled to
the condonation of delay in question as a matter of right.
The proof of a sufficient cause is a condition precedent
for the exercise of the discretionary jurisdiction vested in
the Court by s. 5. If sufficient cause is not proved nothing
further has to be done; the application for condoning
delay has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay.
This aspect of the matter naturally introduces the
consideration of all relevant facts and it is at this stage
that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause
is shown would naturally be limited only to such facts as
the Court may regard as relevant. It cannot justify an
enquiry as to why the party was sitting idle during all the
time available to it. In this connection we may point out
that considerations of bona fides or due diligence are
always material and relevant when the Court is dealing
with applications made under s. 14 of the Limitation Act.
In dealing with such applications the Court is called upon
to consider the effect of the combined provisions of ss. 5
and 14. Therefore, in our opinion, considerations which
have been expressly made material and relevant by the
provisions of s. 14 cannot to the same extent and in the
same manner be invoked in dealing with applications
which fall to be decided only under s. 5 without
reference to s. 14. In the present case there is no
difficulty in holding that the discretion should be
exercised in favour of the appellant be cause apart from
the general criticism made against the appellant’s lack or
diligence during the period of limitation no. other fact
had been adduced against it. Indeed, as we have already
pointed out, the learned Judicial Commissioner rejected
the appellant’s application for condonation of delay only
on the ground that it was appellant’s duty to file the
appeal as soon as possible within the period prescribed,
and, that in our opinion, is not a valid ground.”
24. The said aspect of the matter has been further considered by
the Apex Court in Ram Bhawan Singh and others v. Jagdish
and others, (1990) 4 SCC 309. The view which has been laid by
their Lordships in para-7 of the decision is reproduced as under:
“The first question that we have to decide is that of
limitation. The delay of 1198 days according to the
appellants had occurred unwillingly and the appellants
had been prosecuting with due diligence the earlier
proceedings before the appellate and the revisional
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counsel. There is no proper affidavit of either the
appellants or the counsel in support of the application
for condonation of delay. There is also no other material
to indicate that the appellantshad exercised due diligence in working out their
remedies and sought proper advice in the matter. When
the party had no right of appeal, the proceedings
instituted before the High Court challenging the
judgment in the writ petition cannot be considered to be
one in good faith. The subsequent proceedings are also
not legal or valid. When the decision of the High Court in
the writ petition was one quashing the orders of the
appellate and the revisional authorities, the party could
not proceed on the basis that the matter was restored to
the lower authorities for fresh decision. We are therefore
not satisfied that there is any merit in the ground urged
by the appellants for getting over the bar of limitation.
The appeals are liable to be dismissed as time barred.”
25. The ratio laid down by the Apex Court in Ram Bhawan
Singh’s case (supra) is absolutely applicable in the present case
as I have already indicated in the earlier paragraph that there is
no affidavit either of the appellant or his counsel to the effect that
the civil revision against the order of sale dated 13.8.1999 was
preferred in the High Court under a wrong legal advice. There is
nothing on record by way of any explanation from the appellant
that the appellant has acted under the legal advice to prefer the
revision. In the present case even no application under Section 14
of the Limitation Act was filed by the appellant along with the
application under Order 21 Rule 90 before the executing Court. In
fact, there is no explanation which may be required to be
considered by this Court with regard to sufficiency of cause being
a good cause under due diligence which is the ingredient under
Section 14 of the Limitation Act.
26. In view of the foregoing analysis of the factual scenario and
the obtaining legal position, it is to be concluded that the
appellant is not entitled to the protection and benefit of Section 14
of the Limitation Act for extending the period of limitation.
27. Apart from the aforesaid, the submission of the learned
counsel for the appellant is that the Court below has committed
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serious illegalities while conducting the auction. Indisputably, the
confirmation of sale was stayed in the present case by order dated
5.7.1993 but there was no stay on the sale. It is also not in dispute
that earlier the highest bid of one bidder, namely, Ramgopal was
accepted for a sum of 80.25 Lac in the year 1993 but as the bidder
was not found to be bona fide, the bid was cancelled. Thereafter,
on 21.11.1997 one Shankar Lal offered the highest bid for a sum
of Rs.48.52 Lac. The Court closed the bid in favour of Shankar Lal
on 28.1.1998, however, this time also the bidder failed to deposit
the complete bid amount. There was also an objection on behalf of
the appellant, therefore, the said bid was also cancelled. In this
regard the Court below has come to a conclusion that looking to
the acts of the earlier bidders in not turning up to fulfill the sale
by tendering the complete bid amount a suspicion had arose as to
their genuineness and bona fide. Such highest offers did not
appear like fulfilling the sale and the bid appeared to be planted
as they were never materialized. Thereafter, again valid and wide
publication for auction of the property in dispute was made.
Ultimately, on 13.8.1999 the present auction purchaser came with
a bid of Rs.16,69,000/- and the Court below under the
circumstances and finding no possibility of other bid of higher
amount coming forward, the bid was closed in favour of the
auction purchaser, the second respondent herein. It was always
open to the appellant to bring some higher bidder for the property
in question. The appellant was never stopped from selling the
property on his own and then to get the sale proceeds adjusted
after repayment of the same. It is not in dispute that the property
in question as on 13.8.1999 was the same as it was in the earlier
auction conducted in the year 1993. Admittedly, there was lack of
appropriate safety measures on the land in question because of
which the condition of the property had deteriorated. By efflux of
time even the property was done away with the plant & machinery
and the valuable assets. Therefore, by no stretch of imagination it
can be said that the said property would have fetched the same
price as it could have at the time when the property was intact. It
has already been found that the earlier bids were planted.
Therefore, it is difficult to say that the price fetched by the
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property at the time of sale on 13.8.1999 was not the adequate
price.
28. In my opinion, the objection with regard to the valid
publication of auction notices in the newspapers has no merit of its
own. The publication of auction notices was made in the State
level newspapers and this was done as per the Court’s order dated
26.8.1993 when it was found that no outsider bidder had turned
up on earlier occasions in the auctions. There is nothing on record
that any objection was made on behalf of the appellant to the
order dated 26.8.1993 that the publication of auction notices in
the State level newspapers was unjustified as it would reduce the
chance of there being bidders with higher amount in the
proceedings. The expenses incurred by the decree-holder to the
tune of Rs.1,28,000/- do not indicate that publication with regard
to sale of the property was made with misery. It is seen that even
after 7.8.1999 when the highest bid of Rs.16,69,000/- from the
respondent No.2 had been there, again the call was made on 9th
and 10th August, 1999 in the wake of higher amount than
Rs.16,69,000/- and ultimately when no higher bid was coming
forward the bid was closed in favour of the auction purchaser on
13.8.1999. It is not the case of the appellant here that there was
anybody to offer higher bid than Rs.16,69,000/- and he was
denied. The auction purchaser has deposited the entire bid
amount. For about four years from 13.8.1999 the amount was
deposited with the Court and the Court has given a finding that
even during that period also no effort or submission was made on
behalf of the appellant that still there was someone to offer higher
amount than Rs.16,69,000/-. In these circumstances, no illegality
in the auction is made out and the submission of the counsel in
this regard has no force.
29. Submission of the learned counsel for the appellant is that
no adequate price was received. In this context, after close
scrutiny of the factual matrix of the case and the legal aspects
related thereto as I have already held that there was no illegality
committed in holding the auction sale, therefore, mere inadequacy
M.A. No. 2398/2003
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of the price received in the auction sale is no ground to set aside
the same. The view as such finds support from the decision
rendered by the Apex Court in Rajender Singh v. Ramdhar
Singh and others, AIR 2001 SC 2220.
30. In view of the aforesaid analysis of facts and the reasons
stated herein-above, I do not find any substance in the appeal. The
appeal being bereft of merits, it is dismissed accordingly. No order
as to costs.
(R.K. GUPTA)
JUDGE
S/