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Review Petition
whether or not the rights of a bona fide purchaser get curtailed if the ex-parte decree on the basis whereof the auction sale was conducted is eventually set aside. The Debt Recovery Appellate Tribunal examined the matter afresh and held that the appellants-auction purchasers were not bona fide purchasers of the property as they were aware of the pending legal proceedings between the bank and the borrower. The Tribunal accordingly set aside the sale with a direction to the defendants-respondents 1 to 3 to deposit the entire amount claimed in original application.= “57. (1) On every sale of immovable property, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent on the amount of his purchase money, to the officer conducting the sale; and, in default of such deposit, the property shall forthwith be resold. (2) The full amount of purchase money payable shall be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of the sale of the property.”- The provisions of Rules 57 and 58 of the Income Tax Rules, have their equivalent in Order XXI Rules 84, 85 & 86 of the C.P.C. which are pari materia in language, sweep and effect and have been held to be mandatory by this Court; Rules 84, 85 and 86 of Order XXI were also held to be mandatory= we are of opinion that the provisions of the rules requiring the deposit of 25 per cent. of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non- compliance with these provisions there is no sale at all. – Rule 85 being mandatory, its non-compliance renders the sale proceedings a complete nullity requiring the executing court to proceed under Rule 86 and property has to be resold unless the judgment-debtor satisfies the decree by making the payment before the resale. The argument that the executing court has inherent power to extend time on the ground of its own mistake was also expressly rejected…”; Rules 57 and 58 of the Income Tax Rules are anything but mandatory in nature, so that a breach of the requirements under those Rules will render the auction non-est in the eyes of law.
‘ ITEM NO. 1B Court No.10 SECTION XII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No….. of 2013 @ SLP(C) No. 21765 of 2010 C.N.PARAMSIVAN AND ANR. Appellant (s) VERSUS SUNRISE PLAZA TR. PARTNER AND ORS. Respondent (s) … Continue reading
specific relief Act = It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts”, would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined.; In the facts and circumstances of the case, as the appellant has not yet acquired any title over the land, he has no right to receive compensation to the tune of Rs. 29,47,112/-. However, he withdrew the said amount by giving an undertaking to return the said amount to Res. No. 1 in case any such order was passed by the court in this regard. In view of the above, the appeals are allowed. The judgment and decree passed by the High Court is set aside, and the same passed by the trial court is restored. As a consequence, the appellant is entitled to get the sale deed executed and registered, with respect to all the suit land available now (minus the land acquired and the land purchased by the respondent no.6). 17. The appellant is directed to refund the amount of compensation received by him to Res. No. 1 within a period of three months, alongwith 9% interest from the date of receipt till the date of payment. Civil Appeal Nos. 2888 and 4459 of 2005 In view of the judgment and order in Civil Appeal Nos. 2885- 2887 of 2005, these appeals are dismissed.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 2885-2887 of 2005 S. Kesari Hanuman Goud … Appellant Versus Anjum Jehan & Ors. … Respondents With CIVIL APPEAL NOs. 2888 & 4459 of 2005 J U D G M E N T Dr.B.S.Chauhan, J. Civil Appeal Nos. 2885-2887 of 2005 … Continue reading
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