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Judgment
J.M. Tandon, J.—Vaid Sadhu Ram secured a decree for Rs. 570/- with costs on January 14, 1976, against Gram Sabha Bhokhara Tehsil and District Bhatinda (respondent) represented by Harchand Singh the then Sarpanch. The decree-holder started execution proceedings in March, 1976, for the realisation of the decretal amount and at his instance two Killas of land of the judgment-debtor bearing Khasra Nos. 32/9 (8-0) and 18(8-0) in Khewat No. 277 was attached. The attached land was auctioned on January 30, 1979, and the highest bid offered was that of the petitioner for Rs. 9000/-. The petitioner deposited 25 per cent of the bid at the time of auction. On February 6, 1979, decree-holder appeared in the executing Court and made the following statement :--
My entire decretal amount has been satisfied. Nothing is due. The application for execution be dismissed in satisfaction of the decretal amount. The land in question be released from attachment.
The executing Court passed the following order on the same day :--
Present : Counsel for the parties.
In view of the statement of the decree-holder the application is dismissed as satisfied. The attached property is hereby released.
On February 6, 1979, the petitioner filed an application before the executing Court praying that he may be allowed to deposit the remaining 3/4th bid money and the sale the confirmed. The executing Court called for the office report for February 13, 1979. In the report submitted on February 13, 1979, the fact that the attachment of the land had already be released on February 6, 1979, was omitted. The petitioner was consequently allowed to deposit 3/4th of the bid money. The petitioner deposited 3/4th bid money and thereafter applied to the executing Court for confirmation of the sale under Order 21, rule 92, C.P.C. Upon notice, objections on behalf of the judgment debtor were tiled on March 9, 1979, inter alia alleging that the attachment of the land had already been released and its value was more than Rs. 50,000-. The judgment-debtor also filed another application on March 9, 1979, under Order 21, rule 89, C.P.C. stating that the auction of the land was illegal for the reasons stated therein. The executing Court vide order dated May 5, 1979, dismissing the objections filed by the judgment-debtor and confirmed the sale of the land in favour of the petitioner.
The judgment-debtor assailed the order of the executing Court dated May 5, 1979, in appeal which was allowed by District Judge, Bhatinda vide order dated June 13, 1980. The learned District Judge held that in the office report dated February 13, 1979, the fact that the attached land stood already released on February 6, 1979, was intentionally suppressed and further the sale could not be confirmed by the executing Court after the land had been released from attachment. It was also held that the objections filed by the jugdment-debtor under Order 21. rule 89, C. P C. against the auction was illegal on account of having been conducted by Kanungo whereas the executing Court had directed the S. D. O. (Civil) to do so. The petitioner has assailed the order of the District Judge, Bhatinda, dated June 13, 1980, in the present revision.
The learned counsel for the petitioner has argued that the order of the executing Court dated February 6, 1979, releasing the attached land is void against the petitioner who had offered the highest bid of Rs. 9000/- in an auction conducted on January 30. 1979. The District Judge erred in holding that the executing Court could not confirm the sale of the land in favour of the petitioner in May, 1979, because the attachment of the land had been withdrawn on February 6, 1979 Reliance has been placed on AIR 1931 33 (Privy Council) The contention of the learned counsel for the petitioner must prevail.
The point involved in this case came up for consideration in Nanhelal''s case (supra) and their Lordships made the following observations :
Order 21, rule 2 which provides for certification of an adjustment come to out of Court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected, a third party''s interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. Therefore, after a sale is duly held, the Court cannot refuse to confirm the sale on the grount that the decree-holder and judgment-debtor say that the decree has been satisfied out of Court.
The instant case is covered by the observations of their Lordships. The petitioner offered the highest bid in the auction of the land on January 30, 1979. He had deposited 25 per cent of the bid money on the date of the auction. The attachment of the land was withdrawn on February 6, 1979, in the absence of the auction purchaser. The confirmation of sale in favour of the petitioner could not be refused in May, 1979 solely on the ground that the attachment of the land had since been withdrawn on February 6. 1979.
The learned counsel for the judgment-debtor has contended that the auction of the land was directed to be conduceed by S. D. O. (Civil) whereas the auction was conducted by the Kanungo. It was a material irregularity which resulted in substantial injury to the judgment-debtor in terms of Order 21, rule 90, C. P. C. and the sale in favour of the petitioner has rightly been set aside on the ground :
Order 21, rule 65, C. P. C. reads :
Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.
The executing Court directed the S. D. O. (Civil) to conduct the auction of the land in dispute. The auction was conducted by the Kanungo and not by the S. D. O. (Civil). The conduct of auction by Kanungo in the instant case is a material irregularity. The value of the land is stated to be more than Rs. 50,000/- whereas it was auctioned for Rs. 9000/- only. It shall be reasonable to infer that the material irregularity in the conduct of the sale has resulted in a substantial injury to the judgment debtor. The District Judge has rightly held that the'' sale to favour of the petitioner cannot be sustained on this ground.
In the result, the revision fails and is dismissed with no order as to costs.