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TMI Blog1996 (12) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... s that first respondent did not legally acquire the interest of the decree-holder in the property. He is, therefore, not a transferee by operation of law as envisaged under Order 21 Rule 16 of the Code. His application for substitution is hence liable to be dismissed. - C.A. 16835 OF 1996 - - - Dated:- 19-12-1996 - PUNCHHI, M.M. AND THOMAS K.T., JJ. JUDGMENT Thomas, J. Leave granted. This appeal is by a decree-holder whose effects to execute the decree have now been stalled at the instance of a third party who claims to be the transferee of the interest of the decree-holder in the decree "by operation of law". The application filed by the said third party who is first respondent herein purportedly under Order 21 Rule 16 of the CPC (for short "the Code") though repelled by the execution court was allowed by the High Court as per the order challenged in this appeal. More facts : Appellant Gangabai leased out a portion of her land in Nazul plot No. 2. sheet No. 15/B of Murtizapur Municipality to one Ram Pratap Agrawal (predecessor or respondent Nos. 2 to 5). A civil suit was filed by the appellant in 1970 for recovery of possession of the land from the lessee. That s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the observation that it is open to him to file a fresh suit for that purpose. Though the appellant filed a fresh suit the same was dismissed for default on 7.11.1990. First respondent deposited balance of the bid amount i.e. 3/4th of the bid amount, with the Municipal Council on 9.11.1990. The Chief Officer of the Municipal Council thereupon issued a Sale Certificate in favour of first respondent, it was on the strength of the said Sale Certificate that first respondent moved the present application under Order 21 Rule 16 of the Code. Execution court took the view that the Sale Certificate issued by the Municipal Council was not in accordance with law and hence first respondent cannot be substituted as transferee of the decree-holder. But a Single Judge of the Bombay High Court (Nagpur Bench) took a contrary view that the dispute between first respondent and the decree-holder is not the kind of dispute which execution court could resolve under Section 47 of the Code. Learned Single Judge observed that the court exercising power under order 21 Rule 16 of the Code has only a limited jurisdiction as the court cannot examine the legality of the documents of title. Learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferee of the decree-holder's interest by virtue of the sale conducted by the Municipal Council. But the legal, consequence of the order of the Civil Court dated 24.2.1984 was that, on depositing the tax appears within the time stipulated in the order, the sale would go off. Merely because the suit was subsequently dismissed the legal effect of the court's direction contained in the interlocutory order dated 24.2.1984 would not become a nullity, whatever happened during the pendency of the suit land what all actions taken pursuant to any orders passed by the court during the interregnum would remain a reality unless the court itself had disturbed or modified them. Would first respondent have got the rights or the appellant by bidding in a sale which was conditioned by the court through the order dated 24.2.1984. The sale should have gone off the very day if the plaintiff in that suit had deposited the amount as per directions of the court. Neither the Chief Officer nor even the Municipal Council had the authority to bypass the order of the civil part by confirming the sale on a later day without even obtaining permission from the court. That apart, here the sale was conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules relating to court a sale provided in Order 21 Rules 84 85 are analogous. They require the purchaser to make deposit of 1/4th of the purchase money immediately after sale and the balance shall be deposited within 15 days. This Court held in Manila! Mohanlal Shah and Ors. v. Sardar Sayed Ahmed Sayed Mohammed and Anr. [1966] 1 SCR 108, that non compliance with Rules 84 85 of Order 21 would render the sale void in the eye of law. The contention in the said case, that non compliance with the aforesaid rule only render the sale irregular, was repelled by this Court. The same principle would apply to the sale regulations contained in the above quoted Maharashtra Rules. Here the sale was conducted on 27.2.1984. The bidder who made his initial deposit of Rs. 25,000 did not pay the balance within the period of 15 days i.e. 13.3.1984. Instead the payment was made only on 9.11.1990 which was 6 years 6 months and 12 days after the sale. The excess advanced by the first respondent was that the amount could not be paid on account of pendency of the civil suit filed by the appellant. On the other hand appellant contends that first respondent did not make the payment as he too was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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