Mohinder Singh vs Harbans Kaur and others

M.M. Punchhi, J.—This is a revision petition against the appellate order of the Additional District Judge, Jalandhar, passed in execution proceedings.

A money decree was passed against one Kartar Singh. Kartar Singh died and left behind his widow and children. The decree-holder sought to execute the d cree by attachment and sale of 35 Kanals 6 Marlas of land belonging to the widow and children of Kartar Singh. The effort of the decree-holder was successful inasmuch as he got sold the land in dispute in favour of his father without seeking permission of the Court. Objections raised by the judgment-debtors before the executing Court were sustained. In appeal before the Additional District Judge, Jalandhar, inter alia, the following finding came to be recorded :

In this case the interests of the four minors were also not kept in view and no permission for the sale of the share of the land belonging to them was specifically obtained from the Court Therefore, the judgment-debtors have suffered injury as the land worth Rs. 40,000/- or Rs. 50,000/-had been sold only for a small amount of Rs. 7,000-/. The decree-holder is the son of the auction-purchaser and this shows that the fraud was committed in conducting the sale.

The decree-holder then sought permission of the executing Court under Order 21 Rule 72 of the CPC to purchase the property afore-mentioned. Permission was granted. Auction was held and this time the property fetched Rs. 12,500/- through the bid of the decree-holder. It appears that five persons participated in the bid and the bid was kept open from 10 a.m. to 4 p.m. on November 6, 1980. However, there are discrepant statements of the Chowkidar, who said, that the Naib Tehsildar arrived at the spot to auction the land at 12.30 p.m., and that of the Naib Tehsildar himself who maintained that he had gone to an open space to conduct the sale at 10 a.m. and was there till 4 p.m. However, the bid chit did not mention the time when the bids were offered by the respective buyers. When the matter was objected to before the executing Court the objections of the judgment-debtors filed an appeal before the Additional District Judge who not only found fault with the attachment order under Order 21 Rule 54 of the Code of Civil Procedure, inasmuch as it was not served on the judgment-debtors, as also non-compliance of Order 21 Rule 66 of the Code of Civil Procedure, inasmuch as no notice was sent to the judgment-debtors in terms thereof. He thus termed these irregularities in the proclamation and conduct of sale resulting in substantial injury to the judgment-debtors and consequently sustained the objections setting aside the sale.

It is well settled that before an objection under Order 21 Rule 90 of the CPC can be sustained there has to be either a material irregularity or fraud in publishing or conducting a sale. Additionally, the applicant must have sustained substantial injury by reason of such irregularity or fraud. Now here, substantial injury is writ large on the face of it. The earlier judgment of the Additional District Judge inter partes is that land worth Rs. 40,000/- or Rs. 50,000/- was sold for a partly sum of Rs. 7,000/-. This being the value of the land, substantial injury is again surfaced when the land has been sold for only Rs. 12,500/-. Mr. Sarin, however, vehemently contended that inadequacy of price was no ground for setting aside the sale. Here no such question arises, because the judgment inter parties of the Additional District Judge is already to the effect that land is worth Rs. 40,000/- or Rs. 50,000/-. On that score the earlier sale was set aside coupled with the other factors. Inadequacy of price in the present situation assumes significance when the same fault has been committed for the second time.

4 With regard to the conducting of the sale, there is an obvious material irregularity as it is not discernible with the accuracy as to when the auction started, at what point of time the bids were attracted and at what point of time was the auction closed. In view of the discrepant statements of the Chowkidar and the Naib Tehsildar regarding the time of the arrival of the latter, inegularity in the conduct of the sale seems obvious On this ground alone, the order of the learned Additional District Judge can be sustained.

Otherwise also I find no reason to differ from the view taken by the learned Additional District Judge that the judgment debtors were not conveyed the attachment order under Order 21 Rule 54 of the Code of Civil Procedure. If that was so, it was incumbent on the Court to have issued notice under Order 21 Rule 66 of the CPC before proclamation could be drawn. In the absence thereof, the sale conducted could obviously be set aside under Order 21 Rule 90, as there was a material irregularity in the publishing of the sale. The judgment-debtors had to be kept alive of these steps by the executing Court. Since these were not taken to their knowledge, the view of the learned Additional District Judge was quite sound in setting aside the sale.

For the foregoing reasons, I find no merit in this petition, which fails and is hereby dismissed. No costs.