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1997 DIGILAW 371 (PAT)

Prakash Gupta v. Oaisar Ahmad

1997-05-07

SUDHANSU JYOTI MUKHOPADHAYA

body1997
JUDGEMENT S. J. Mukhopadhaya, J 1. This revision application arises out of order dated 14th March, 1995, by learned 7th Sub Judge. Bhagalpur in Misc. Case No. 11/85. The learned court below rejected the petition which was filed by the judgment debtor-petitioner under sections 47 and 151 of C.P.C. 2. The plaintiffs-Opposite Party 1st set filed Title Suit No. 5 of 1981 for declaration that the defendant-petitioner herein defalcated in payment of rent and is liable to arrears of rent. Eviction was also sought for on the said ground. A compromise decree was passed with regard to claim of arrears and it was decreed that the petitioner will pay a sum of Rs. 14,500/- as arrears of rent to the plaintiff opposite party. However subsequently the plaintiffs-opposite parties had to move in Title Execution Case No.3/84 for realisation of the aforesaid amount and the amount having not been paid, 1/4th share of the judgment debtor was action sold for Rs. 14,500/-. The same was purchased by the decree holder-Opposite party and such sale was subsequently confirmed. According to the judgment debtor-petitioner, the property which was auction sold for Rs. 14,500/-was so sold without any notice to the judgment debtor. It is alleged that three holdings of the Judgment debtor petitioner's property were sold for Rs. 14,500/- when the cost of such land with the house thereon was about Rs.7 lakhs at that point of time. In the aforesaid background, the judgment debtor-petitioner filed a petition under sections 47 and 151 of the C.P.C. which was registered ns Misc. Case No.11/95. 3. As slated above after hearing the parties, taking into note the exhibits and the statement of witnesses, the court below rejected the aforesaid application by impugned order dated 14th March, 1995. 4. According to the petitioner, he had no knowledge about the Title Execution Case No. 3/84. No notice was sent to him under Order 21 Rule 22, C.P.C. 5. Counsel for the petitioner submitted that in fact three procedures were to be followed with respect to notice to the judgment debtor-petitioner and none of such notice was ever served on the petitioner in terms with Order 21 Rule 22, C.P.C. or Rule 54 or Rule 66 therein. It is submitted that the service report as was shown before the court below was collusive and likewise the order of attachment was never served. It is submitted that the service report as was shown before the court below was collusive and likewise the order of attachment was never served. The counsel for the petitioner submitted that the poperty worth Rs. 7 lakhs was sold at a throwaway price of 14,500/- and was purchased by the decree holder himself and while made allegation of collusion, submitted that this Court should interfere with the matter under its revisional jurisdiction to do substantial justice and to do away the injustice done with the judgment debtor. In this connection he relied on the decision of the Supreme Court in the case of Satyanarain Bajoria & another Vs. Ramnarain Tibrewal and another reported in 1994 (1) P.L.J.R. 3 (SC). 6. The counsel appearing on behalf of the decree holder-Opposite party 1st set objected the submissions made by the counsel for the petitioner and placed reliance on different paragraphs of the impugned order. According to the counsel for the decree holder opposite party the court below having given its decision on the basis of finding of fact, this Court should not go into the merit on such fact, so as to come to a different conclusion. In this connection, he relied on the decision of the Supreme Court in the case of M/S D.L.F. Housing & Construction Co. (P) Ltd. Vs. Sarup Singh and others (A.I.R. 1971 S.C. 2324) and the Managing Director (MIG) Hindustau Aeronautics Ltd. Balanagar, Hyderabad & another Vs. Ajit Prasad Tarway, Manager (Purchase & Stores) of the said organisation (A.I.R. 1973 S.C. 76.) 7. I have also gone through the impugned order and taken into note the submissions as advanced by the parties. It will be evident from the impugned order that the court below after going through the record of the Title Execution Case No. 3/84, came to a definite conclusion that the notices were duly served on the judgment debtor-petitioner, in accordance with law. The said execution case was filed on 28th February, 1984 along with the copy of the decree. The Seristedar submitted report on the same and the court ordered to issue notice and to file requisite on 13th March, 1984. Notice under order 21 Rule 22 of CPC was issued on 21st March, 1984 and the affidavit in support of the same was filed on the same date. The Seristedar submitted report on the same and the court ordered to issue notice and to file requisite on 13th March, 1984. Notice under order 21 Rule 22 of CPC was issued on 21st March, 1984 and the affidavit in support of the same was filed on the same date. From the order-sheet, the court below came to know that on 25th April, 1984, process under order 21 Rule 54, CPC was filed on the same date along with the requisites, which was ordered to be issued on 24th May, 1984. Service report of the same was received by the said court on 19th June, 1984 along with the affidavit. Thereafter on 29th June 1984, the court ordered for proclamation for auction sale of the properties in question, fixing 4th September, 1984 as the date for auction at 12 noon. But it seems that the court was closed on 4th September, 1984 to 4th November, 1984, so no auction sale could take place during the said period 22nd January, 1985 was the next date fixed for auction sale at 12 noon. Proclamation for auction sale was issued on 22nd November, 1984 by the order of the Court. The order dated 22nd January, 1985 shows that the property in question, was sold for Rs. 14,500/- and the vendee deposited 1/4th of the amount with the permission of the court as earnest money. It was further taken into note that the vendee was the highest bidder during the said auction sale. The sale was confirmed by the court after lapse of 30 days on 23rd February, 1985. Apart from the aforesaid finding based on the record of the court, the court also relied on other exhibits and statement of witnesses and came to a definite conclusion that the processes were not suppressed and the applicant-judgment debtor-petitioner failed to establish that he had no knowledge of the execution proceeding. I find no reason to differ with such finding of the court below. 8. So far as the amount of Rs. 14,500/- which is stated to be the amount paid by the decree holder-Opposite party at the time of auction sale to purchase the property of the judgment debtor is concerned, according to me it is a disputed question of fact, which can be decided on the basis of different evidences and statement of witnesses. 14,500/- which is stated to be the amount paid by the decree holder-Opposite party at the time of auction sale to purchase the property of the judgment debtor is concerned, according to me it is a disputed question of fact, which can be decided on the basis of different evidences and statement of witnesses. The court below has taken into note different exhibits, including Ext-'C' and came to a specific conclusion that the plea of the petitioner was false, as land could not have fetched such high amount as claimed by the petitioner. I find no reason to differ with the same, particularly, when the petitioner has failed to show any evidence relating to sale of property of nearby area of such corresponding year 1985-86, which fetched higher value than the amount which was deposited by the decree holder-opposite party. 9 For the reasons stated above, I am not inclined to interfere with the impugned order. The Civil revision application is, accordingly, dismissed. No cost. Revision Dismissed.