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Jai Lal vs The Divisional Manager, Forest Working Division

High Court Of Himachal Pradesh · Decided on 6 July 2010 · Citation: (2010) 07 SHI CK 0113

HON’BLE JUDGES
Surjit Singh, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Section 47 · Constitution of India, 1950 — Article 227
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Judgment

7 paragraphs · 409 words

Surjit Singh, J.—The present petition, under Article 227 of the Constitution of India, is directed against the order dated 6th April, 2010 of the Executing Court, whereby the attached Immovable property of the petitioner, hereinafter referred to as JD, has been ordered to be auctioned for realization of decretal amount. Order is alleged to have been passed without first dealing with the objections, u/s 47 of the Code of Civil Procedure, filed by the JD. Order is also assailed, on the ground that there is no compliance of provisions of Rules 54 and 66 of Order 21 of the Code of Civil Procedure.

2.

I have heard the learned Counsel for the parties and gone through the record of the Executing Court, which was requisitioned, vide order dated 24th May, 2010.

3.

JD had filed objections, which are available on the record of the Executing Court. The Executing Court has not made any reference to these objections, in its impugned order, leave alone dealing with them, objectively. Also, I find from the record that though a proclamation, under Rule 66 of Order 21 of the Code of Civil Procedure, was issued, giving description of the property, but its estimated value, in accordance with second proviso to Sub-rule (2) Rule 66 of Order 21 of the Code of Civil Procedure, was not mentioned in the proclamation nor did the DH give the estimated value of the property.

4.

It has been submitted by the learned Counsel for the DH that auction has already taken place and the property has been purchased by the DH, with the permission of the Court, under Order 21 Rule 72 of the Code of Civil Procedure.

5.

Proclamation, under Order 21 Rule 66 of the Code of Civil Procedure, being defective, on account of failure to give estimated value of the property put to auction, sale is bad in the eyes of law. The same is, therefore, set aside. Impugned order of the Executing Court is also set aside and the case is remanded to the Executing Court with the direction to decide the objections of the JD first and then to proceed in the matter, according to law.

6.

Parties are directed to appear before the Executing Court on 4th August, 2010. Record of the Executing Court be returned immediately, so as to reach the said Court well before the aforesaid date.

Petition stands disposed of. Pending application(s), if any, also stand disposed of.