Rajender Parshad vs Devi Dayal Ravinder Kumar

A.S. Nehra, J.

This appeal has been filed by the objectorsappellants against the judgment dated 21.1.1987 passed by the Additional District Judge (I), Gurgaon.

The facts of the case, in brief, are that decreeholder M/s. Devi Dayal Ravinder Kumar had filed a suit against M/s. Sukhdev Singh Guru Parshad, respondent No. 3, and Jai Dayal, objectorappellant No. 4 as partner of the firm M/s. Sukhdev Singh Guru Parshad, under the Arbitration Act, in Civil Court at Delhi and thereafter an Arbitrator was appointed, who gave his award and the said award was made a rule of the Court by Sub Judge 1st Class Delhi, on 21.12.1978, vide which the suit of M/s. Devi Dayal Ravinder Kumar, respondentdecreeholder was decreed against M/s Sukhdev Singh Guru Parshad and Jai Dayal (partner of firm M/s. Sukhdev Singh Guru Parshad), for a sum of Rs. 10,941/ with interest and costs, as per the copy of the decreesheet dated 21.12.1978. The decreeholder applied to the civil Court at Delhi for transfer of the said decree to the Court at Gurgaon as a result of which, a transfer certificate was issued by Sub Judge 1st Class, Delhi transferring the said decree to the Court at Gurgaon. The decreeholder filed an execution application in the Gurgaon Court. The proceedings were initiated on the said execution application and, during the execution proceedings, the property, in dispute, was duly attached on 9.6.1979 at the spot. Subsequent thereto, in the presence of the counsel for the parties, including the objectorsappellants, the Sub Judge 1st Class, Gurgaon, ordered the sale of the said immovable property which had already been attached. Thereafter, proceedings for the sale of the said attached property were initiated. However, for quite some time, the said property could not be sold in auction.

On 30.11.1982 the objectorsappellants filed an objection petition dated 29.11.1982 under Order XXI Rule 58 read with sections 47 and 151, Code of Civil Procedure, in the executing Court at Gurgaon, alleging that the land of the objectors had wrongly and illegally been attached and that the said attachment was liable to be removed and that the decree was a nullity and inexecutable on account of the various grounds detailed in paragraph 3 of the said objection petition. It was accordingly prayed that the objection petition be allowed, the land of the objectors be released from attachment and the execution application be dismissed. However, as the auction was fixed for 2.12.1982, the learned executing Court passed the order dated 2.12.1982 ordering that the auction of the attached property be not stayed and that the auction be held as, for more than two years, the objectors had been getting the execution proceedings delayed. It was further ordered that the said objectionpetition would, however, remain pending and, in case the objectors are able to prove their objections, the sale would not be confirmed. Subsequently the attached property was sold in auction but the said action was set aside as the auctionpurchaser had not deposited the auction money in time and the attached property was ordered to be auctioned again. Ultimately, the attached property was auctioned on 29.4.1983 in favour of the auction purchaser Mahesh Kumar, respondent No. 2. The said auction had taken place for a sum of Rs. 22,000/.

Subsequently, the objectorsappellants filed another objection petition on 21.5.1983 against the auction held on 29.4.1983, alleging therein that their previous objectionpetition dated 29.11.1982 under Order XXI Rule 58 read with sections 47 and 151, Code of Civil Procedure, was still pending in the Court; that the objectors were the persons having interest in the property which had been auctioned on 29.4.1983; that the said auction was illegal and same was liable to be set aside; that no proclamation with regard to the said auction was made in the village; that the entire agricultural land of the objectors had been sold for a nominal amount of Rs. 22,000/ while the said land could be sold at the rate not less than Rs. 20,000/ per acre and that the auctionpurchaser was a man of the decree holder and was associated with the decreeholder firm. It was accordingly prayed that the said objections be accepted and the auction be set aside. The said objection petition was contested by the auctionpurchaser who filed reply controverting the allegations contained in the said objection petition, alleging therein that the objectors had no locus standi to file the objections and that the auction held on 29.4.1983 was perfectly legal and valid. It was denied that no proclamation had been made in the village or that the rate of the land was Rs. 20,000/ per acre. It was further alleged by the auctionpurchaser that, in the previous auction, the same land and been sold for Rs. 21,500/ (which now had been sold for Rs. 22,000/). It was also denied that there was any collusion between the decreeholder the auctionpurchaser or that he was associated with the decreeholder firm. It was accordingly prayed that the objectionpetition be dismissed.

On the pleadings of the parties, the learned executing Court framed the following issues :

(1) Whether the auction sale is liable to be set aside, as alleged ?

(2) Whether the agricultural land, in question, was not liable to be attached and sold in execution, as alleged ?

(3) Whether the firm became nonexistant, as alleged ? If so, its effect ?

(4) Whether the award is without jurisdiction, as alleged ?

(5) Whether the sale is liable to be set aside, as alleged in objection petition dated 21.5.1983 ?

(6) Whether the objections raised in the previous objectionpetition cannot be raised at this stage, as alleged ?

(7) Whether the objector has no locus standi ?

(8) Relief.

First of all, issue No. 3 was dealt with by the learned executing Court and the said issue was decided against the objectors, holding that the firm M/s. Sukhdev Singh Guru Parshad was in existence. Thereafter, issues Nos. 2 and 4 were dealt with together and both the issues were decided against the objectors, holding that the agricultural land, in question, was liable to be attached and sold in execution of the decree and that the award given by the Arbitrator and the decree passed by the Civil Court were legal and within jurisdiction. Issues Nos. 1 and 5 were dealt with together and were decided against the objectors, holding that the auctionsale was not liable to be set aside. Issue No. 6 was held to have become redundant, since the previous objections under Order XXI Rule 58 read with sections 47 and 151, Code of Civil Procedure, were specifically kept pending. Issue No. 7 was decided in favour of the objectors, holding that the objectors had the locus standi to file the objections. In the result, the executing Court dismissed both the objectionpetitions. It is against this order of the executing Court that the objectors filed an appeal before the learned Additional District Judge (I), Gurgaon, which was dismissed on 21.1.1987.

Learned counsel for the appellants has argued that the decree which was sought to be executed was a nullity and inexecutable. I do not find any force in the argument raised by the learned counsel for the appellants. A perusal of the trial Court file would show that the objectorsappellants had filed objections under Order XXI Rule 58 read with sections 47 and 151, Code of Civil Procedure, in the Court of Sub Judge 1st Class, Delhi, alleging therein that the decree dated 21.12.1978 was a nullity and unenforceable. The learned Sub Judge 1st Class, Delhi, issued notice to the decreeholder. The decreeholder filed reply to the said objection petition. In the reply it was stated that the objection petition was not maintainable at Delhi but could be filed in the Gurgaon Court only as the order of attachment was also passed by the Gurgaon Court and that the Delhi Court had no jurisdiction to entertain the said objection petition. On merits, the said objection petition was also decided and it was held that the decree was perfectly legal and valid. The learned Sub Judge 1st Class, Delhi, had summoned the original file, in which the decree was passed and, after perusing the record and hearing the learned counsel for the parties, passed a detailed order on 5.4.1980, dismissing the objection petition filed by the objectors and it was held that no valid grounds were there in declaring the decree dated 21.12.1978 to be a nullity and unenforceable and that the objectors had filed the objection petition only for the purpose of delaying the execution and, accordingly, the said objection petition was dismissed. A copy of the order dated 5.4.1980 is available on the record as Exhibit DHX. The objectors filed a civil revision in the Delhi High Court, which was dismissed for nonprosecution.

A perusal of the order dated 5.4.1980 (Exhibit DHX) passed by the Sub Judge 1st Class, Delhi, dismissing the objections under Order XXI Rule 58 read with sections 47 and 151, Code of Civil Procedure, filed by the objectors appellants, would clearly show that the learned Sub Judge 1st class, Delhi had dealt with all the various points which have now been raised before me by the learned counsel for the appellants. The learned Sub Judge 1st Class, Delhi, had upheld the validity of the decree and held the said decree to be executable and had dismissed the objectionpetition filed by the appellants. Under these circumstances, in my opinion, the appellants now cannot be allowed to urge that the decree was illegal and inexecutable. The objectors appellants are clearly estopped from raising the validity and executability of the decree in the Courts at Gurgaon, after their previous objection was dismissed by the Delhi Court.

Learned counsel for the appellants submitted that there were various infirmities in the attachment of the land, in question, inasmuch as the order of attachment was passed in the absence of the judgmentdebtors; that there was nothing on the record to show as to how and when the property, in question, was attached and that the various requirements for attachment of the immovable property were not complied with and, under these circumstances, the auction proceedings for such land are also liable to be set aside. A perusal of various interlocutory orders passed by the executing Court would clearly show that the land, in question, had been ordered to be attached after following the necessary requirements of law and, under these circumstances, it cannot be said that the land, in question, had not been attached in accordance with law. Furthermore, the executing Court file would clearly show that the land, in question, had been attached on 9.6.1979 in accordance with law and it was subsequent thereto that the auction proceedings had taken place. The objectorsappellants cannot be allowed to urge that there was some defect in the attachment of the land, in question. It has been held in M/s Electro Strips Industries (P) Ltd. v. The Haryana Financial Corporation, Chandigarh, 1981 Current Law Journal 536, that according to explanation to subrule (3) of rule 90 of Order XXI C.P.C. mere absence or defect in attachment of the property sold would not, by itself, be a ground for setting aside the sale.

Learned counsel for the appellants aruged that in the present case, auction of the land, in question, was liable to be set aside only on the ground that even though the SubDivisional Officer (Civil) was directed to conduct the auction, the said auction was held by the Tehsildar and, under these circumstances, the said auction was liable to be set aside. He placed reliance or the law laid down by our own Hon''ble High Court in Darbara Singh v. Gram Sabha of village Bhokhra, Tehsil and District Bhatinda etc., 1986 RRR 540 (P&H) : 1985(2) PLR 276. The abovementioned judgment is not applicable to the facts of the present case. In Darbara Singh''s case (supra) the executing Court had directed the Sub Divisional Officer (Civil) to conduct the auction of the land, in dispute, but the auction was conducted by Kanungo and not by Sub Divisional Officer (Civil) and the value of the land was stated to be more than Rs. 50,000/, whereas it was auctioned for Rs. 9,000/ only and it was under these circumstances that the Hon''ble High Court had held that it shall be reasonable to infer that the material irregularity in the conduct of the sale had resulted in substantial injury to the judgmentdebator. Further, in Darbara Singh''s case (supra), after the auction was held, the judgmentdebator paid the entire decretal amount to the decreeholder and the decree holder sought the dismissal of the execution application and also got the land, in question, released from attachment. Therefore, the law laid down in the abovementioned authority would not apply to the facts of the present case. In the present case, the warrant of auction issued by the executing Court is available on the record and a perusal thereof would show that the Bailiff of the Court of the Sub Divisional Officer (Civil), Gurgaon, was directed to auction the land in question, and submit the report. It was in pursuance of the said warrant of auction issued by the executing Court to the Bailiff of the Court of Sub Divisional Officer (Civil) that Sub Divisional Officer (Civil) had directed the Tehsildar to comply with the said warrant of auction and in pursuance thereof, the Tehsildar held the auction on 2941983, in which Mahesh Kumar auctionpurchaser, was the highest bidder for Rs. 22,000/ and the Tehsildar returned the said warrant of auction to the said executing Court through the Sub Divisional Officer (Civil). Thus, it would be clear that, in the present case, the executing Court had not directed the Sub Divisional Officer (Civil) to personally auction the land, in question, but, on the other hand, the executing Court had directed the Bailiff of the Court of Sub Divisional Officer (Civil) to hold the auction. Therefore, there was absolutely nothing wrong if the Sub Divisional Officer (Civil) had directed the Tehsildar to comply with the said warrant of auction. The auction conducted by the Tehsildar could not be said to be without jurisdiction. Under these circumstances, it cannot be said that there was material irregularity in the conduct of the sale or that the same had resulted in substantial injury to the judgment debtors.

The learned counsel for the respondents has argued that merely marking the proclamation to the Sub Divisional Officer (Civil) cannot be deemed to be an order specifically directing the SubDivisional Officer (Civil) to conduct the sale. Keeping in view the provisions of Order XXI Rule 65 of the Code of Civil Procedure read with section 141 of the Punjab Land Revenue Act and Rule 23, it can safely be inferred that the sale had been effected by a person duly authorised. In the absence of express order, nothing can be read as the orders of the Court to infer that the Sub Divisional Officer (Civil) was directed to effect the sale or any embargo was put on his powers not to direct his subordinate to auction the property, in dispute, at the spot. The learned counsel for the respondents has relied upon a judgment of this Hon''ble High Court reported as M/s. Bajwa and Company, Rice Mills, Village Pal Pukhta, Post office Lakhivinder Miani v. Naresh Pal Singh, (19892) 96 Punjab Law Reporter 522, which is fully applicable to the facts of the present case. It was further argued by the learned counsel for the respondents that it is clear from the provisions contained in Rule 90 of Order XXI and the proviso appended thereto, that a sale of immoveable property can be set aside if it is shown, firstly, that there has been material irregularity or fraud in publishing or conducting it and, secondly, that the applicant has sustined substantial injury on account of such material irregularity and fraud. The term ''irregularity'' means not being in conformity to the Rules prescribed for regulating execution sale. The word ''material'' would mean real and not merely formal or academic. So, an irregularity which may be termed as material should be such which affects the ultimate decision of the case. ''Injury'' means loss which is wrongful and ''substantial'' would mean actual and not imaginary. The material irregularity and substantial injury sustained by the applicant must be corelated with each other as cause and effect. In other words, the substantial injury sustained by the applicant must be the result of material irregularity committed in publishing or conducting the execution sale. The learned Counsel for the respondents has placed reliance on a judgment of this Hon''ble High Court reported as Mrs. Margaret A. Skinner v. M/s Empire Store, Cannaught Place, New Delhi1, and others, Punjab Law Reporter 64, which is fully applicable to the facts of the present case.

In view of the abovementioned discussion, there is no merit in this appeal which is dismissed with costs.