Brij Raj Singh vs Ist A.D.J

Bharati Sapru, J.—Heard learned Counsel for the Petitioner and learned Counsel for the Respondents.

Pleadings have been exchanged in this matter.

This writ petition has been filed by the Petitioner being aggrieved by an order dated 27.10.1989 passed in an appeal filed by the Petitioner, which has been dismissed.

The facts of the case are that a money decree was passed in Original Suit No. 253 of 1973 against the Petitioner and one Anokhey Lal, who was a co-Defendant. The property of Anokhey Lal Defendant judgment debtor was attached under Order 38 Rule 5 of the Code of Civil Procedure

The decree holder opposite party No. 3 executed the said money decree and the Execution Application was registered as Execution Case No. 61 of 1978. In this execution case the agricultural property of the Petitioner was attached and put to auction.

One Budha Singh predecessor in interest of opposite party Nos. 4 to 7 purchased the property in dispute belonging to the Petitioner for a sum of Rs. 8,000/-in an auction sale held on 27.3.1979.

The Petitioner filed objections under Order 21 Rule 90 CPC against the said auction sale on the gound that no publicity was made with the result that prospective bidders could not attend the auction and could not make their bids. The property according to the Petitioner was worth approximately Rs. 25,000/-but was sold for a very low price of Rs. 8,000/-.

The Petitioner also contends that although the auction was stated to be held at a certain open spot, the location of the auction was changed without notice to the judgment debtor and it was placed at the Tehsil. The Petitioner also states that no notice under Order 21 Rule 66 CPC was issued and served on the judgment debtor and no notice under Order 21 Rule 54 (1) and 54 (2) of the CPC was issued to the judgment debtor and no notice was affixed in the office of the Gram Panchayat.

The Petitioner contends that there was fraud in conducting the sale and even though there was sufficient security in the hands of the executing Court from which the decree could have been satisfied yet the auction was completed without proper proclamation and proper notice.

The objections filed by the Petitioner were dismissed by an order dated 27.4.1985 against which the Petitioner filed an appeal and the appeal of the Petitioner too had been dismissed by the order dated 27.10.1989.

It has come on record that the original file of the execution case was burnt in the fire, which took place in the Civil Court at Bareilly and, therefore, was not available to the executing Court at the time of decision of the objections made by the Petitioner.

In the present writ petition the Petitioner has made averments in paragraph Nos. 16,17 & 18 that the price at which the auction was finalized was very low and inadequate. Secondly it has also been averred that there was no notice under Order 21 Rule 66 C.P.C., which was served on the Petitioner and, thirdly, it has also been averred that even though the place of the auction was changed and no notice was given of the said change and, therefore, the prospective bidders could not come on the site of the auction.

In reply to the contents of paragraph Nos. 14, 15, 16 & 17 of the writ petition, a counter affidavit has been filed by the other side, which does not clearly state that the change of the sites of the auction was informed to the Petitioner or that prospective bidders had any notice of the change of sites. A huge tract of land has been sold for a mere measly Rs. 8,000/-.

The order of the Court below has recorded the fact that the records were destroyed and on the basis of the oral evidence the Court below has come to the conclusion that there was proper publication before the auction took place in the Tehsil. The conclusion has been made on the basis of the oral evidence and, therefore, after hearing both sides and having perused the record, I am of the opinion that there should have been the proper publication of the auction and also before making the auction the Court below should also have considered that infact the property of the judgment debtor had already been attached and since it was adequate to safeguard the interest of the decree holder he should not have auctioned the property without properly confirming to the process of law. The auction, therefore, made on 27.3.1979 is bad and is set aside by this Court.

The money deposited by the Respondent may be returned to him. It will be open to the Court to issue a fresh notice of auction for satisfaction of the decree if not already satisfied.

The writ petition is allowed. No costs.