ORDER
M. Ramakrishna, J.
1. The petitioner in this Revision Petition under Section 115 of the Code of Civil Procedure has sought to set aside the order dated 7.12.1991 made by the Principal Civil Judge, Koiar, in Execution No. 54 of 1989 directing issuance of fresh proclamation to sell in public auction the lorry in question, to confirm the sale held on 29.10.1991 as per the direction of the Court and to grant such other reliefs as this Court deems fit in the circumstances of the case.
2. Canara Bank, respondent-1 herein, obtained a decree in O.S.No. 118 of 1986 for the recovery of a sum of Rs. 3,70,000. Respondents 2 to 7 were the judgment debtors. The decree came to be executed in Execution Case No. 54 of 1989. During the course of the execution proceedings, the lorry bearing registration No. MYK 9631 belonging to the judgment debtors, was sought to be sold in public auction to realise the decretal amount. Accordingly, by an order dated 22.12.1990 the Court directed sale of the lorry in public auction. Consequently, the lorry was seized and was handed over to a surety by name Srinivasa. It was in the garrage near Darga, Kolar Town.
3. Pursuant to the order of the Court, the Bailiff conducted sale of the lorry. It is stated that the revision petitioner participated in the auction sale and he offered the highest bid for Rs. 38,000/- which was paid into the Court immediately thereafter.
4. It is stated that thereafter an application under Order 21 Rule 66 of the C.P.C. was filed by one Balakrishna stating that he had no opportunity to participate in the public auction sale of the lorry in question though he very much wanted to offer the highest bid for Rs. 48,000/- that, according to him, no auction sale had taken place at the place where the lorry was kept, that the lorry was sold for a paltry sum of Rs. 38,000/- and that therefore the sale conducted in public auction on 29.10.1991 may be set aside and fresh auction sale ordered.
5. This application was opposed by the petitioner herein, who was the auction purchaser, on the ground that once the sale of movable property took place pursuant to the order of the Court, there was no justification in holding the public auction again for the sale of the lorry in question, which would result in injustice to him,
6. The learned Civil Judge having heard learned Counsel on both sides, made an order under revision directing resale of the lorry in public auction on 7.2.1992 after issuing fresh proclamation. He has held that the auction purchaser was at liberty to withdraw the amount paid into the Court pursuant to the sale made earlier. Hence this Petition.
7. I have heard learned Counsel on both sides.
8. The point that arises for my consideration in this Petition is whether the learned Civil Judge was justified in directing resale of the lorry for the reasons furnished by him.
9. The contest in this Revision Petition is only between the petitioner, auction purchaser, and respondent-1 Canara Bank.
10. Sri Urval N.Ramanand, learned Counsel for respondent-1 Bank, argued that pursuant to the Court order directing sale of the lorry in question in public auction on a particular date, the sale proclamation having been issued under Order 21 R.66 C.P.C., the sale did take place in terms of the said proclamation of sale. According to him, discretion was left to the Court as contained in condition-3 of the proclamation to accept the highest bid if it was found legal and valid or to decline to accept it. His further argument is that usually and in accordance with the sale proclamation, the sale should have taken place at the place where the lorry was found stationary and that, in the instant case, since the sale did not take place at the spot where the forry was found parked, but somewhere else, the learned Judge was right in not confirming the said sale. In support of his arguments, he placed reliance on the following authorities:-
(1) , Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal
(2) , Consolidated Coffee Ltd. etc v. Coffee Board, Bangalore
(3) ILR 1976(2) Allahabad 161, Industrial Weavers Co-operative Society v. Commissioner.
11. The learned Counsel for the petitioner, per contra, argued that the conditions imposed in the proclamation of sale, let alone the discretion of the Court to accept or decline the bid, were not applicable to movable properties. In other words, according to him, pursuant to the proclamation of sale of movable property in public auction, if the sale as such took place, there was no discretion left to the Court but to confirm the sale once it was complete and the highest bidder deposited in the Court the bid amount immediately thereafter. In the instant case, the sale having taken place as per the proclamation of sale and the petitioner being the highest bidder having deposited the bid amount into the Court, the Court should have confirmed the sale in favour of the petitioner. Instead, it directed resale by issuing fresh proclamation, which cannot be sustained in law. The last submission of the learned Counsel is that the Court below was not justified in drawing an inference that as there was a subsequent offer for Rs. 48,000/- as against Rs. 38,000/- bid earlier, resale of the lorry in question in public auction was warranted. In support of his arguments, he placed reliance on the following Decisions:-
(1) 1981(1) Kar.L.J. 518, Ramakrishna Tantri P. v. Vijaya Bank Ltd and Ors.
(2) , Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors.
12. Before considering the rival contentions urged before me, let me consider the statutory requirement of Order 21 Rule 77 C.P.C., which reads:-
“R1. 77. Sale by public auction:- (1) Where moveable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.
(2) On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.
(3) xxxxx”.
13. Dealing with a question directly arising under Order 21 Rule 77 CPC, the Nagpur High Court in the case of LOKMAN CHHABILAL v. MOTILAL, AIR 1939 Nagpur 269 has held as follows:-
“So far as the sale of movable property is concerned, it is the Officer who is holding the sale who concludes the matter by saying who has purchased, within what time the purchase price must be paid, by receiving the purchase money and by granting a receipt. Thereupon the sale becomes complete, property passes and the matter is over.”
(Please see Commentary on Execution Proceedings by Soonavala, 1958 Edition at p.1161).
14. Therefore, I am of the view that the conditions contained in the proclamation of sale issued under Order 21 Rule 66 CPC are not applicable in the case of sale of movables, with the result the discretion under condition No. 3 in the proclamation of sale cannot be exercised by the Court to decline acceptance or confirmation of the sale once the sale of movable property was held in public auction and the highest bidder deposited the amount of bid in the Court immediately thereafter,
15. In Ramakrishna Tantri’s case, cited above, this Court was called upon to decide the question whether the Court could have decided the application for raising the attachment after the sale of the movable properties attached before judgment had taken place. Considering the question, this Court held inter alia as follows in paragraph-4:-
“……. Thus it is clear that what is to be adjudicated is the right, title or interest in the property attached and which arise between the parties to a proceeding or their representatives. It is clear from the facts stated above that the moveable properties in question were sold in public auction in execution of the decree obtained by the petitioner in O.S.No. 90 of 1975 against the 3rd respondent. The auction purchaser also had deposited the amount which was directed to be kept in fixed deposit by the order of the Court, dated 6.1.1978, in the Syndicate Bank, Southern Bazzar, Gulbarga. As per Rule 77 of 0.21 of the Code, the sale of movable property by public auction becomes absolute on payment of the purchase money. Rule 78 of Order 21 of the Code provides that no irregularity in publishing or conducting the sale of movable property shall vitiate the sale, but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such property. Thus, it is, clear that in the case of moveable property sold by a public auction, the sale becomes absolute as soon as the purchase money is paid which is required to be paid at the time of the sale or soon after the sale as may be directed by the Officer conducting the sale……”
(Emphasis is supplied).
16. The view taken in the above case is in favour of the petitioner herein, because though he was not the decree holder, the lorry in question was sold in public auction pursuant to the proclamation of sale issued in Execution Case No. 54 of 1989 following the decree in O.S.No. 118 of 1986. In that sale, he was the highest bidder and soon after the sale, he deposited the bid amount in the Court. Therefore, the above Ruling squarely applies to the facts of this case.
17. So far as the allegation of irregularity in issuing sale proclamation or conducting sale pursuant to it is concerned, it will not vitiate the sale and if anybody is aggrieved by reason of such irregularity, he may institute a suit for appropriate relief and he cannot resort to file any application before the Executing Court for cancellation of the sale held in public auction, in respect of moveable property.
18. Coming to the Karnataka Civil Rules of Practice 1967, Rule 136 thereof provides:
“So much of the foregoing Rules as may be applicable, shall be followed in the case of an application to sell moveable property attached by prohibitory order, so that the description of such property may be as complete as possible.”
The above Rule is applicable only in respect of a moveable property attached by prohibitory order. That is not the case here. The later part of the said Rule provides:
“In the case of other moveables, the Court may make such enquiries as it thinks proper, but shall not be bound to do so unless application is made to raise the attachment or to declare a lien.”
Again this question will not arise in the instant case as no application was filed by the judgment debtors for raising the attachment.
19. Rule 141 of the Civil Rules of Practice provides as follows:-
“141. Immediate or early sale of moveable property.- If moveable property is in the custody of the Nazir or Curator, and it appears to the Court that immediate sale thereof is necessary, the Court may authorise him to sell the same by public auction and may give such directions as to the date, time and place as the circumstances of the particular case may require.”
This is the requirement of Order 21 Rules 43 and 68 of the CPC. In the instant case, by a specific order, the Court having directed the Officer of the Court to sell the lorry in public auction pursuant to the sale proclamation, the Nazir went to the spot where the lorry was parked, drew a mahazar and then conducted sale of the lorry in question in public auction. The mahazar reads:
20. In the light of the mahazar and the subsequent conduct of sale as referred to above, it is undoubtedly clear that the Officer of the Court, who conducted the sale, did follow not only the direction of the Court but also the procedure as required by law for holding the public auction. Therefore, it is not possible to find fault with the nature of the auction sale held. It is also not in dispute that within the given time after the sale, the auction purchaser, petitioner herein, paid into the Court the bid amount. It is only thereafter i.e., at the time of confirmation of the sale, that an application was filed by one of the citizens for reconducting the sale in public auction. That application was allowed and resale was ordered mainly on two grounds that there was no proper publication of the sale proclamation and that the applicant had no opportunity to participate in the public auction held for want of sufficient publicity. In the course of the order, the Court below has assigned reasonings as follows in support of its order;
“Since the sale is subject to confirmation, the arguments of the auction purchaser’s counsel that the sale is completed and nobody can challenge it cannot be accepted. The 2nd reason is the Court which has put the property into sale, has inherent jurisdiction to see that justice is done and no party should suffer a substantial loss, and the orders and acts of the Court should not be prejudicial to the interest of even a third party. When it is on record that the vehicle itself was worth Rs. 55,000/- in the execution proceedings, the sale at Rs. 38,000/- is inadequate. Though it is true that the inadequacy of the consideration is not a ground for setting aside the sale, but the consideration amount shown and now the approach of a third party to the Court with deposit of Rs. 48,000/- saying that he is willing to purchase the vehicle and he intended to purchase the same, but for defective proclamation and in conducting the auction as per the provisions of Order 21 Rule 66 goes to show that the auction was not conducted properly in the same place where it ought to have been made.”
21. The reasons assigned by the Court below for not confirming the sale held in public auction and for directing resale by issuing fresh proclamation are not convincing in view of my finding earlier in the course of this order that no irregularity in publishing or conducting the sale of moveable property vitiates the sale and that any person aggrieved by such a sale may file a suit for appropriate relief but not to take recourse to file an application before the executing Court for cancellation of the sale already held pursuant to the publication of the proclamation of sale. I may also derive sustenance to my conclusion from the Decision of the Supreme Court in Govindarao Mahadik’s case, cited above. Dealing with the question of entitlement of an auction purchaser, who is an outsider or a stranger to any protection under Order 21 Rules 72, 92 and 94 of the CPC., the Supreme Court has held therein as follows;
“Ordinarily, if the auction-purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the Court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction-sale has been held is set aside. This proceeds on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment-debtor not obtaining stay of the execution of the decree during the pendency of the appeal. But if the auction-purchaser is the decree-holder himself the situation would materially” alter and this decree-holder auction purchaser should not be entitled to any protection.”
22. The learned counsel for respondent-1 Bank also relying on the aforesaid Decision of the Supreme Court submitted that the equity was in favour of the Bank by not confirming the sale, that when there was a third person offering higher price than that of the auction purchaser, the Bank would suffer if the resale was not held as the bid amount was far below the decretal amount and that therefore equity must be taken into account for the purpose of deciding the question. I may observe that the above Decision is more helpful to the petitioner rather than the Bank respondent-1, In the above case, the auction purchaser himself was the decree holder and even on the date of the decree obtained by him as also on the date of his filing the execution application, the judgment debtor had no subsisting interest in the property which could be sold at the court auction and therefore it was held that the decree holder did not acquire under the sale certificate equity of redemption of the mortgage. Here in the instant case we are not concerned with equity of redemption because we are dealing with the question of passing title in moveable property.
23. At the cost of repetition, I may observe again that we are aware that Rule 78 of Order 21 CPC also provides that no irregularity in publishing or conducting the sale of moveable property shall vitiate the sale. Dealing with the question arising under these provisions, the Lahore High Court in DHARM SINGH v. FIRM RAM BHEJA, AIR 1930 Lahore 236 has ruled as follows:-
This rule provides for the case of irregularity in publishing or conducting the sale of movable property. Rule 90 deals with the irregularity in publishing or conducting the sale of immovable property. A sale of movable property becomes absolute automatically and no irregularity in publishing or conducting such sale can vitiate it, though any person sustaining any injury by reason thereof can institute a suit for compensation or for the recovery of the specific property and for compensation in default of such recovery.
In MAUNG PA v. ABDUL GANNI, AlR 1926 Rangoon 214 the Rangoon High Court in a similar case has held as foliows:-
“There is no provision in the Code that sales of movable property shaft in no case be set aside. In a sale of movable property under a decree of Court all. that is sold is the right, title and interest of the j.d.; and the real owner, if not the j.d., can bring a suit to recover the movable property or its value from the auction purchaser in the same manner as he would be entitled to recover from the j.d.”
24. In the instant case, we are not concerned with the claim made by the judgment debtors. On the other hand, the objection is by the 3rd party intending to participate in the auction sale on the ground that he had no proper opportunity to participate in the auction sale held. I am afraid, this cannot be a good ground to attack the sale held which has become complete by virtue of the receipt of sale price by the Court, Presuming for the purpose of argument that there is irregularity in publishing the sale proclamation or conducting the sale of a moveable property, the only course open to the aggrieved person is to file a suit for appropriate relief as stated above and not to file any application before the Court which conducted the sale in public auction of the moveable property.
25. I carefully perused the authorities cited by the learned Counsel Sri Urval N.Ramanand for respondent-1 Bank. They are of no assistance to him because the facts of those Cases are different from the facts of the present ease. In view of what is discussed above. I do not see any force in the arguments of Sri Urval N.Ramanand.
26. Lastly, applying the provisions of Section 64 of Sale of Goods Act, 1930, we may also say that Sub-section (2) thereof is to the same effect that once the auctioneer announces its completion by the fall of the hammer or in other customary manner, the sale is complete and until such announcement is made, any bidder may retract his bid. Therefore, applying these provisions also to the facts of this case and taking into consideration the scope of Order 21 Rule 77 CPC., I am sure that a third party cannot make a grievance against the confirmation of sale merely because he had no opportunity to participate in the auction sale on the ground that there was no proper publication of the sale proclamation. That is not a ground on which the Court can take the view not to confirm the sale already held.
27. Viewed from any angle, the order under Revision directing resale of the lorry in question by issuing fresh proclamation cannot be sustained and the same is liable to be set aside.
In the result and for the reasons stated above, this Revision Petition is allowed and the impugned order is set aside. It is needless to say that the petitioner being the highest bidder and having deposited the bid amount of Rs. 38,000/- in the Court on completion of the sale, is entitled to confirmation of sale. Ordered accordingly.