# Aporv Jindal Director M/s Jindal Frozen Food Pvt. Ltd v. Mr. Amit Kumar Kubba & another

- **Citation:** (2011) 3 ILRA 1239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-22
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aporv-jindal-director-m-s-jindal-frozen-food-pvt-ltd-v-mr-amit-kumar-kubba-41953
- **Pages:** 7

## Headnote

Code of Criminal Procedure-order XXI
Rule 89, rule 92 (2)-Petitioner purchased
the property in question from judgment
debtor-after knowledge about auction
sale
in
execution
proceeding-moved
application-for impleadment as party
with prayer to set-a-side-the auctionallowed by execution court-after that the
execution court has to pass formal order
setting-a-side the auction sale-strict in
accordance with provision of Rule 89 and
92 not beyond that-argument when
application allowed there is automatic
non existence of auction sale-heldmisconceived-with-consequential
directions-petition disposed of.

Held: Para 14

This Court is of the opinion that in view
of the provisions of sub-rule (2) of Rule
92, the order has to be passed by the
court for setting aside the sale on the
requirements as indicated therein, read
with requirements of Rule 89 on their
being complied with. This therefore
requires the passing of an order after
applying mind to the ingredients that are
required to be examined in terms of Rule
89 and Rule 92 as indicated hereinabove.
In view of this, the contention raised on
behalf of the petitioner that the sale will
be presumed to have been set aside
under the Order dated 7th August, 2007
does not appear to be correct, inasmuch
as,
an
order
under
the
aforesaid
provisions has to be passed by the court
concerned. The issue relating to the
enquiry
to
be
made
is
being
apprehended by the petitioner to be a
full scale enquiry on the merits of the
claim
of
the
petitioner.
This
apprehension in my opinion is misplaced,
inasmuch as, the enquiry which has to be
made is only confined to the provisions
of Rule 89 and Rule 92 and not beyond
that.
Case law discussed:
2004 ACJ 683 (Paras 9 and 10); AIR 1935
Madras Pg. 842; 1962 ALJ 735; 2004 ACJ 683

## Text

3 All] Aporv Jindal Director M/s Jindal Frozen Food Pvt. Ltd. V. Mr. Amit Kumar Kubba & another 1239
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. 52932 OF 2011

Aporv Jindal Director M/s Jindal Frozen
Food Pvt. Ltd.

 ...Petitioner
Versus
Mr. Amit Kumar Kubba & another

 ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Vijay Prakash

Counsel for the Respondents:
Sri Manish Tiwari
Sri R.K. Shukla

Code of Criminal Procedure-order XXI
Rule 89, rule 92 (2)-Petitioner purchased
the property in question from judgment
debtor-after knowledge about auction
sale
in
execution
proceeding-moved
application-for impleadment as party
with prayer to set-a-side-the auctionallowed by execution court-after that the
execution court has to pass formal order
setting-a-side the auction sale-strict in
accordance with provision of Rule 89 and
92 not beyond that-argument when
application allowed there is automatic
non existence of auction sale-heldmisconceived-with-consequential
directions-petition disposed of.

Held: Para 14

This Court is of the opinion that in view
of the provisions of sub-rule (2) of Rule
92, the order has to be passed by the
court for setting aside the sale on the
requirements as indicated therein, read
with requirements of Rule 89 on their
being complied with. This therefore
requires the passing of an order after
applying mind to the ingredients that are
required to be examined in terms of Rule
89 and Rule 92 as indicated hereinabove.
In view of this, the contention raised on
behalf of the petitioner that the sale will
be presumed to have been set aside
under the Order dated 7th August, 2007
does not appear to be correct, inasmuch
as,
an
order
under
the
aforesaid
provisions has to be passed by the court
concerned. The issue relating to the
enquiry
to
be
made
is
being
apprehended by the petitioner to be a
full scale enquiry on the merits of the
claim
of
the
petitioner.
This
apprehension in my opinion is misplaced,
inasmuch as, the enquiry which has to be
made is only confined to the provisions
of Rule 89 and Rule 92 and not beyond
that.
Case law discussed:
2004 ACJ 683 (Paras 9 and 10); AIR 1935
Madras Pg. 842; 1962 ALJ 735; 2004 ACJ 683

(Delivered by Hon'ble A.P. Sahi,J. )

1. Heard Sri Shashi Nandan learned
Senior Counsel along with Sri Vijay
Prakash for the petitioner, Sri Manish
Tiwari for the respondent no. 1 - decree
holder and Sri S.K. Shukla for the auction
purchaser - respondent no. 2. The dispute
falls within a very short campus in this
petition which assails the order passed by
the court below rejecting the application
moved by the petitioner for consigning
the execution proceedings in Execution
Case No. 44 of 2004. Learned counsel for
the parties agree that the petition be
disposed of finally as no further affidavits
are necessary, the issue involved being
purely legal.

2. The background in which the said
application came to be moved is that the
property in dispute became subject matter
of
attachment
during
execution
proceedings on 10th March, 2005. The
petitioner is stated to have purchased the
1240 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
property from the judgment-debtor on
12th January, 2006. In between the
attached property was put to auction
which took place on 19th October, 2006
in which the respondent no. 2 alleges to
have purchased the property. Immediately
thereafter, upon making the deposits on
15th November 2006, the petitioner
moved an application on 21st November
2006 under Order XXI Rule 89 C.P.C.,
praying for setting aside the sale which
was numbered as Application No. 3-C.
Objections
were
filed
to
the said
application by the decree holder and the
auction purchaser both, confined only to
locus of the petitioner to move the said
application. The said objections were
heard and ultimately the application filed
by the petitioner came to be allowed on
7th August, 2007. The decree holder and
the auction purchaser both filed revisions
against the said order dated 7th August,
2007 before this Court. The revision filed
by Sanjai Batra the auction purchaser was
numbered as Civil Revision No. (12) of
2008 which was dismissed as withdrawn
by the following order:-

"BY THE COURT

After the matter was heard for some
time, learned counsel appearing for the
applicant made a prayer to dismiss the
instant revision as withdrawn in as much
as the same is not maintainable.

Prayer made is allowed.

Revision
stands
dismissed
as
withdrawn.

Dt/-122.2008 Sd/-Krishna Murari,J."

3. The revision filed by the
respondent no. 1 decree holder was
dismissed on 14th July, 2009 by the
following order:-

"Hon'ble Devi Prasad,J.

The revisionist has purchased a
property which is subject matter of
execution proceeding. The respondent has
filed an objection which was opposed by
the revisionist. Learned trial Court has
recorded a finding that in view of the
provision contained in Order XXI Rule 89
CPC, any person having interest in the
property in dispute shall have right to file
objection. The objection filed by the
respondent as Paper No.3-Ga has been
accepted by the learned Civil Judge
(Senior Division), Ghaziabad.

The order does not seem to suffer
from any impropriety or illegality.

The revision is devoid of merit. It is
accordingly dismissed."

4. The respondent no. 1 who is the
decree holder assailed the order of this
Court before the apex court in Special
Leave Petition No. 7732 of 2010. The
said S.L.P. was dismissed observing that
the petitioner may raise objections that
may be available to him in law. The order
passed by the apex court is reproduced
herein under:-

"Delay condoned.

The
Special
Leave
Petition
is
dismissed.

However, we request the Trial Court
to dispose of the pending proceedings as
3 All] Aporv Jindal Director M/s Jindal Frozen Food Pvt. Ltd. V. Mr. Amit Kumar Kubba & another 1241
expeditiously
as
possible,
preferably
within six months from today.

It is needless to observe that the
petitioner is entitled to raise all the
objections as may be available to him in
law."

5. The petitioner moved an
application
for
consigning
the
proceedings to records in view of the fact
that the application filed by him under
Order XXI Rule 89 C.P.C. had already
been allowed, which application came to
be contested, whereafter the order came to
be passed on 11th March, 2011 holding
that the application under Order XXI Rule
89 CP.C. had not been decided on merits
and was only an acceptance of the locus
of the petitioner to move the application
under Order XXI Rule 89 C.P.C.

6. The petitioner came up before this
Court in Civil Misc. Writ Petition No.
18951 of 2011 which was disposed of by
the following order dated 1st April,
2011:-

"Hon'ble Rajes Kumar,J.

Heard Sri Neeraj Tripathi, learned
counsel for the petitioner and learned
Standing Counsel.

Learned counsel for the petitioner
submitted
that
the
petitioner
had
purchased the property in dispute from
judgment debtor. In pursuance of the
decree, the property was put to auction on
19.10.2006. The petitioner moved an
application under Order XXI Rule 89
C.P.C. for setting aside the auction after
complying
with
the
necessary
requirement. The said application has
been allowed on 07.08.2007, which is
annexure-7 to the writ petition. The
petitioner moved an application before
the court below that when the application
under Order XXI Rule 89 C.P.C. has been
allowed, no further order is required and,
therefore, the file pertaining to the case
no.256 of 2006 be consigned to record.
On the said application, the trial court
has passed the impugned order dated
11.03.2011 wherein it has been held that
the said application has not been decided
on merit for which 25.03.2011 has been
fixed. He further submitted that once the
application under Order XXI Rule 89
C.P.C. has been allowed, there is no
justification to hear the application on
merit again.

In view of the aforesaid facts and
circumstances, the court is of the view
that let the petitioner may file a fresh
application before the court below taking
all the pleas which have been taken in the
writ petition disputing the further decision
on merit on the application under 21 Rule
89 C.P.C. In case, if the petitioner files
any application within a period of two
weeks, the trial court is directed to
dispose of the said application after
giving opportunity of hearing to all
concerned parties within another period
of two months before proceeding with the
case further by a reasoned order.

For a period of ten weeks, the impugned
order dated 11.03.2011 passed in Misc.
Case No.256 of 2006 (Apurva Jindal Vs.
Amit Kumar Kubba and others) shall be
kept in abeyance and shall be subject to
the fresh order which will be passed.

The writ petition stand disposed of.

Order Date :- 1.4.2011"
1242 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. Consequently a detail application
was again moved by the petitioner and the
same has again been rejected on the
ground that the matter is yet to be decided
on merits relating to the setting aside of
the sale and therefore the same will be
heard further on 30th September, 2011.
Aggrieved, the petitioner is before this
Court praying for quashing of the said
order and for a direction that the court
may proceed keeping itself confined to
the request of consigning the records
made on behalf of the petitioner.

8. Sri Shashi Nandan submits that
the approach of the court below is
absolutely erroneous, inasmuch as, no
objections to the application moved under
Order XXI Rule 89 C.P.C. had been made
by the opposite parties except for raising
an objection to the locus of the petitioner
and in this view of the matter the
application which has been allowed on
7th August, 2007 will be presumed to
have accepted the prayer of setting aside
the sale. A mere formality of passing a
formal order remains. There is no
occasion for the court to now proceed to
hear the entire matter on merits as
observed in the impugned order. It is
further submitted that so far as the
respondent no. 2 -auction purchaser is
concerned, his revision filed before this
Court against the order dated 7th August,
2007 had been dismissed as withdrawn,
and therefore he will be presumed to have
abandoned any future claim in the matter.

9. It is further contended that the
court
below
has
misconstrued
the
observations made by this Court in the
judgment dated 1st April, 2011 and has
committed the same error and in effect the
sale has to be set aside which the court is
obliged to do in view of the law laid down
by the apex court in the case of
Challamane Huchha Gowda Vs. M.R.
Tirumala & another, 2004 ACJ 683
(Paras 9 and 10). He has further invited
the attention of the court to the Full Bench
decision of the Madras High Court in the
case of L.A. Krishna Ayyar Vs.
Arunachalam Chettiar, reported in AIR
1935 Madras Pg. 842 and the Division
bench judgment of this Court in the case
of Moolchand Vs. Bishwanath Prasad
Tilbha Deshwar & others, reported in
1962 ALJ 735.

10. Sri Shashi Nandan has further
laid stress on the words used in Rule 89 of
Order XXI read with Rule 92(2) of Order
XXI to contend that in the absence of any
objections
which
could
have
been
possibly made, there is no option for the
court except to pass an order for setting
aside the sale which in effect has already
been done in the order dated 7th August,
2007.

11. Replying to the said submissions
on behalf of the petitioner, learned
counsel for the respondents contends that
the order dated 7th August, 2007 makes it
clear that the matter has to be heard on the
issue relating to the setting aside of the
sale and it is for the said purpose that the
court while proceeding to pass the order
on 7.8.2007 had observed that the file
shall be placed alongwith the records of
the
main
execution
proceedings
in
Execution Case No. 44 of 2004 for further
hearing. He therefore submits that the
petitioner cannot be permitted to pre-empt
this part of the action of the court. The
answering respondents are also entitled to
raise their objections in relation to the
aspect of setting aside the sale. He
therefore contends that the impugned
order does not suffer from any infirmity
3 All] Aporv Jindal Director M/s Jindal Frozen Food Pvt. Ltd. V. Mr. Amit Kumar Kubba & another 1243
and
hence
does
not
require
any
interference by this Court.

12. Having heard learned counsel
for the parties it would be appropriate to
gainfully reproduce Rules 89 and 92 of
Order XXI for the purpose of this case:-

"89. Application to set aside sale on
deposit

(1) Where immovable property has
been sold in execution of a degree, 1[any
person claiming an interest in the
property sold at the time of the sale or at
the time of making the application, or
acting for or in the interest of such
person,] may apply to have the sale set
aside on his deposition in Court,-

(a) for payment to the purchaser, a
sum equal to five per cent of the
purchase-money, and

(b) for payment, to the decreeholder, the amount specified in the
proclamation of sale as that for the
recovery of which the sale was ordered
less any amount which may, since the date
of such proclamation of sale, have been
received by the decree-holder.

(2) Where a person applies under
rule 90 to set aside the sale of his
immovable property, he shall not unless
he withdraws his application, be entitled
to make or prosecute an application
under this rule.

(3) Nothing in this rule shall relieve
the judgment-debtor from any liability he
may be under in respect of costs and
interest not covered by the proclamation
of sale.

92. Sale when to become absolute or
be set aside.

(1) When no application is made
under rule 89, rule 90 or rule 91, or
where such application is made and
disallowed, the Court shall make an order
confirming the sale, and thereupon the
sale shall become absolute:

1[Provided that, where any property
is sold in execution of a decree pending
the final disposal of any claim to, or any
objection to the attachment of, such
property, the Court shall not confirm such
sale until the final disposal of such claim
or objection.]

(2) Where such 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
2[sixty days] from the date of sale, 3[or in
cases where the amount deposited under
rule 89 is found to be deficient owing to
any clerical or arithmetical mistake on
the part of the depositor 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]:

Provided that no order shall be made
unless notice of the application has been
given to all persons affected thereby.

2[Provided further that the deposit
under this sub-rule may be made within
sixty days in all such cases where the
period of thirty days, within which the
deposit had to be made, has not expired
before the commencement of the Code of
Civil Procedure (Amendment) Act, 2002.]
1244 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(3) No suit to set aside an order
made under this rule shall be brought by
any person against whom such order is
made.

3[(4) Where a third party challenges
the judgment-debtor's title by filing a suit
against
the
auction-purchaser,
the
decree-holder and the judgment-debtor
shall be necessary parties to the suit.

3(5) If the suit referred to in sub-rule
(4) is decreed, the Court shall direct the
decree-holder to refund the money to the
auction-purchaser, and where such an
order is passed the execution proceeding
in which the sale had been held shall,
unless the Court directs, be revived at the
stage at which the sale was ordered.]"

13. A perusal of the said provisions
makes it clear that a person who claims an
interest in the property is entitled to move
an application for setting aside the sale.
This part of the issue already stands
concluded in favour of the petitioner by
the orders which have been passed by this
Court and culminating under the order
passed by the apex court. The petitioner
therefore has an interest in the property
and therefore entitled to make a prayer for
the passing of an order in relation to the
setting aside of the sale.

14. The contention seems to be
narrowed down between the parties on the
issue as to what should be the extent of
the enquiry which can be made by the
court while proceeding to pass such an
order. This Court is of the opinion that in
view of the provisions of sub-rule (2) of
Rule 92, the order has to be passed by the
court for setting aside the sale on the
requirements as indicated therein, read
with requirements of Rule 89 on their
being complied with. This therefore
requires the passing of an order after
applying mind to the ingredients that are
required to be examined in terms of Rule
89 and Rule 92 as indicated hereinabove.
In view of this, the contention raised on
behalf of the petitioner that the sale will
be presumed to have been set aside under
the Order dated 7th August, 2007 does not
appear to be correct, inasmuch as, an
order under the aforesaid provisions has
to be passed by the court concerned. The
issue relating to the enquiry to be made is
being apprehended by the petitioner to be
a full scale enquiry on the merits of the
claim of the petitioner. This apprehension
in my opinion is misplaced, inasmuch as,
the enquiry which has to be made is only
confined to the provisions of Rule 89 and
Rule 92 and not beyond that. The order
has to be passed and to that extent the
court is obliged to pass an order in view
of the decision relied upon by the learned
counsel for the petitioner in the case of
Challamane Huchha Gowda Vs. M.R.
Tirumala & another, reported in 2004
ACJ 683 where the apex court has
observed as under:-

"Because the purpose of Rule 21 is to
ensure the carrying out of the orders and
decrees of the Court, once the judgmentdebtor carries 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 with conditions as provided
under Rule 89, it is mandatory upon the
Court to set aside the sale under Rule 92.
And the Court shall set aside the sale
3 All] Ajay Kumar V. State of U.P and others
1245
after giving notice under Rule 99(2) to all
affected persons."

15. It is therefore an obligation of
the court to pass such an order as it is
mandatory as observed by the Apex
Court. The recital contained in the order
dated 7th August, 2007 does not indicate
that the court had formally passed an
order for setting aside the sale which
requirement has to be fulfilled for the
passing of an order and therefore the writ
petition stands disposed of with a
direction to the court concerned to
proceed to pass an order in accordance
with law in the light of the observations
made hereinabove within a period of two
months from the date of presentation of a
certified copy of this order before the
court concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition N0. 55804 of 2011

Ajay Kumar

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava

Counsel for the Respondents:
Ms. Suman Sirhio
C.S.C.

Constitution of India Article 226-U.P.
Recruitment
of
Dependents
of
Governments Servants Dying in Harness
Rule 1974-compassionate appointmentpetitioner's father working as Forest
Guard on daily wages basis-died in
harness-even worked for more than 3
years and given salary in Pay Scale-in
view of Full Bench decision of Pawan
Kumar
case
not
entitled
for
compassionate appointment.

Held: Para 8

The Full Bench of this Court in the case
of Pawan Kumar Yadav vs. State of U.P.
and others (supra) on consideration of
Rules 5 (1) and 2 (a) of the Dying in
Harness Rules, 1974 has held that the
dependants of the daily wager or work
charge employee not holding any post
either substantive or temporary and not
appointed in any regular vacancey; even
if he worked for more than three years
before the death is not entitled for
appointment on compassionate ground.
Case law discussed:
(2006) 9 SCC-337; (2009) 2 SCC (L&S) 304;
[2010 (8) ADJ 664 (FB)]; Pawan Kumar Yadav
vs. State of U.P. and others (supra)

(Delivered by Hon'ble Rajes Kumar, J. )

1. The petitioner is claiming
compassionate appointment on account of
death of his father, who died on 29.9.2007
under
the
U.P.
Recruitment
of
Dependents of Government Servants
Dying
in
Harness,
Rules,
1974
(hereinafter referred to as ("Dying in
Harness, Rules, 1974").

2. The contention of the petitioner is
that his father was employed as a daily
wager on the post of Forest Guard in the
year 1984 in Badaun. In pursuance of the
order of the apex Court in the case of
State of U.P. and others Vs. Putti Lal,
reported in (2006) 9 SCC-337, he was
getting minimum pay-scale of the payscale of the regular employee. On
24.5.2008, the petitioner's mother had
requested respondent to extend the benefit
of Dying in Harness Rules, 1974 to the
petitioner, the son of the deceased, and