Bhola Ram vs Bakhtawar and Another

Shamsher Bahadur, J.—This is a judgment-debtor''s appeal directed against the appellate order of the Senior Subordinate Judge affirming the order passed in execution by the trial Judge dismissing his objections, under the provisions of rule 90 of Order 21, Code of Civil Procedure.

It has been conceded by the learned counsel for the appellant that no second appeal lies under sub-section (2) of section 104 of the CPC and it is submitted by him that the memorandum of appeal may be treated as a petition for revision.

A decree was passed in favour of Bakhtawar respondent against the appellant Bhola on 5th of May, 1961. In execution of this decree, the decree-holder got the house in dispute sold and it was purchased by the contesting respondent Gugan for a sura of Rs. 1000/-. The auction-purchaser only purchased the equity of redemption and he had to meet the liability of Rs. 2500/- as mortgage money. The auction was held by the Court Auctioneer Shri Moti Sagar Advocate on 15th March, 1962. According to the evidence of the Auctioneer, the judgment-debtor and the decree-holder were present when the bidding took place but the judgment-debtor refused to sign the auction papers. Both the judgment-debtor and the decree-holder raised objections regarding the sale, the principal emphasis being on the point that the probable value of the house which was put to auction was not mentioned in the proclamation. In the pleas of the auction-purchaser, it was asserted that the auction bad taken place in accordance with rules and the only issue which was framed by the executing Court was to this effect:-

Whether the auction in suit is liable to be set aside for reasons alleged in the objection petition of the judgment-debtor Bhola and the decree-holder Bakhtawar?". On a perusal of the evidence, the executing Court found the issue in favour of the auction-purchaser and dismissed the objections on 10th of November, 1962. The appeal of the judgment-debtor was dismissed by the learned Senior Subordinate Judge on 28th of February, 1963.

In the appeal, which I will treat as revision petition, it has been contended by Mr. Gaur that after the auction, one Karan Singh had made a statement in Court that he was prepared to buy the house in dispute for a sum of Rs. 6000/- and he had actually deposited a sum of Rs. 1,500/- in Court. Now, this plea has never been taken in the objections preferred before the executing Court, nor was it made a subject-matter of the issue. The lower appellate Court dismissed the appeal on the ground that the objection which had been taken with regard to the sale had not been taken at the time of sale. Under sub-rule (1) of rule 90 of Order 21:-

"Where any immovable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets, * * may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:

Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

In an amendment made in the Punjab rules, there is another proviso that.-

Provided further that no such sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted.

The judgment- debtor was present when the sale was conducted and he could have taken the objection with regard to the omission in the proclamation, at the time when the auction took place. Mr. Gaur has invited my attention to a decision of Bhide J. in AIR 1939 222 (Lahore) where it was held that the second proviso to Order 21, rule (sic) ''only precludes objections to a sale being entertained at a later stage if it could have been put forward earlier, but if the judgment-debtors were never served with a notice as regards sale it is obvious that the objection could not have been preferred earlier and hence the proviso does not apply". Manifestly, the ratio of this decision does not apply to the facts in the instant case. The judgment-debtor was present at the time of the sale and indeed it was nowhere mentioned in the objections preferred by him that he had not been served with the notice of sale or that he had been precluded for some unavoidable reason to make this objection.

In my opinion, the decision of the lower appellate Court is well based and there being no force in this petition it must be dismissed with costs.

Petition dismissed.