Gurcharan Singh vs Darshan Singh

The decree-holder Gurcharan Singh has challenged in this appeal judgment of Addl. District Judge,. Patiala, dated September 23, 1987, whereby appeal filed by Darshan Singh s/b Mangal Singh (judgment-debtor) was allowed and order of the trial Court dated October 21, 1986, dismissing objection filed by the judgment-debtor was set aside.

The present petitioner obtained decree for the recovery of Rs. 9000/- with costs against the respondent on March 28, 1980 in a suit for specific performance of the contract. In execution of the decree, land in dispute was attached. At this stage it may be stated that this land was the same which was agreed to be sold for which suit for specific performance was filed. After attachment of the land notice under Order XXI, Rule 66 of the CPC was issued to the judgment-debtor. However, no objections to the attachment were filed by the judgment-debtor.

The land in dispute was sold by the judgment-debtor to one Wirsa Singh for about Rs. 11,000/ - who further sold the land to one Darshan Singh son of Karam Singh, who filed objections during the execution proceedings. His objections were dismissed in default. His application for restoration of his objections was also dismissed on October 12, 1985.

The sale of the attached land took place and the decree-holder, present petitioner, after obtaining permission from the Court gave bid at the auction. The land was auctioned for a sum of Rs. 10167.10 P. on December IP, 1985. The judgment-debtor thereafter filed the present objections under Order XXI, Rule 90 of the C.P.C. on the ground that market value of the land was about Rs. 40,000/- whereas it was sold for Rs. 10,167.10 only. The decree-holder committed fraud in getting the paper transaction done, These objections were contested and the following issues were framed:--

(1) Whether the sale deed 18-12-1985 is liable to be set aside upon the assertions made in the application? OPA

(2) Relief.

The executing Court decided issue No. 1 against the objector holding that no evidence was produced regarding the valuation of the property as Rs. 40,000/- and no other irregularity was pointed out. The objections were dismissed. The lower appellate Court came to the conclusion that since the judgment-debtor had already sold the land in dispute to Wirsa Singh and who had further sold it to Darshan Singh son of Karam Singh, the land in dispute could not be put to acution. He, therefore, accepted the appeal and set aside the sale.

Learned counsel for the petitioner has argued that the lower appellate Court has made out entirely a new case for the judgment-debtor which was not in his objections. It is further pointed out that since objections of Darshan Singh son of Karam Singh, vendee, stood dismissed the objection was not available to the judgment-debtor. Further it is argued that the judgment-debtor could raise objections to the attachment of the land in dispute before the same was put to auction and after the sale such objection is not-maintainable. There is force in this contention. The purpose of issuing notice under Order 21, Rule 66 of the C.P.C. is to enable the judgment-debtor to raise objections to the attachment of the property to be sold. At this stage the judgment-debtor admittedly did not file such objections. Objections to the conduct of the sale could be filed under Order 21, Rule 90 of the C.P.C. which reads as under:--

"Application to set aside sate on ground of irregularity or fraud (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

"Explanation: The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule."

A perusal of the aforesaid provision would show that persons mentioned in Order 21, Rule 90(1), C.P.C., only can file objections to the conducting of the sale held in execution. Those persons are: a decree-holder or the purchaser or any person entitled to share rateable assets or whose interests are affected by sale. The contention of counsel for the respondent is that ultimately the interest of the judgment-debtor is going to be affected as after the sale the so-called purchasers, namely, Wirsa Singh or Darshan Singh son of Karam Singh may file suits for the recovery of their money against him. This contention cannot be accepted. However, immediately after the decision, the property in dispute was purchased by third person. It is too remote a matter on which the judgment-debtor wants to rely as there were two successive sales in this case; one by the judgment-debtor to Wirsa Singh and subsequently by Wirsa Singh to Darshan Singh son of Karam Singh. Remotely it cannot be said that the judgment-debtor would be affected by the sale held in the execution in this case, he having sold the land in dispute, as stated above, and objections of Darshan Singh son of Karam Singh having been dismissed.

Learned counsel for the respondent has argued that his objection that the value of the land was Rs. 40,000/-, should have been considered by the lower appellate Court. For that it may be stated that no evidence was produced except oral statement made by the judgment-debtor. Be that as it may, inadequacy of consideration could not be a ground to set aside a sale, more so, when it is not going to cause any substantive injury to the judgment-debtor. In this respect reference may be made to the decision of the Supreme Court in Shri Radhey Shyam Vs. Shyam Behari Singh, . The ratio of the decision of the Supreme Court in Ambati Narasayya Vs. M. Subba Rao and another, , that by sale of portion of the land, the decree could be satisfied is not applicable to the case in hand as provisions of Order 21, Rule 90 of the C.P.C. are not attracted.

For the reasons recorded above, this revision petition is allowed, the order of the lower appellate Court is set aside and that of the trial Court is restored. In the circumstances of the case there will be no order as to costs.

Revision allowed.