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1999 DIGILAW 281 (MP)

Nanhebhai v. Khatunbi

1999-04-06

V.K.AGARWAL

body1999
JUDGMENT This appeal is directed against the judgment and decree dated 12.1.90, by IInd ADJ Sagar, in Civil Appeal No. 12A/89, decreeing the suit of plaintiffs respondents by reversing the judgment and decree dated 26.7.89, by Civil Judge, Class-II, Sagar, in Civil Suit No. 27 A/85. Undisputably the plaintiffs-respondents purchased the suit property consisting of agricultural land situate at village Mudiya, Tahsil Banda, distt. Sagar, fully described in para 11 of the plaint, in auction sale in execution of the decree in Civil Suit No. 26A/76 of the Court of Civil Judge, Class II, Banda. A sale certificate was issued in his favour. The case of plaintiffs-respondents was that he was delivered possession of the suit land. However, the defendants-appellants were disturbing his possession. He therefore prayed for the relief of permanent injunction, restraining the defendants-appellants from interfering in his possession. The defendants-appellants resisted the suit on various grounds, inter-alia, alleging that the possession of the suit land was not delivered to the plaintiffs-respondents, and that it continued with the defendants-appellants. The learned trial Court in its judgment held that there was no compliance of mandatory provisions regarding the auction sale of property. It was also held that no notice under Order 21 Rule 66(2) CPC was issued before the auction sale, and the sale therefore was vitiated. The suit of the plaintiff was accordingly dismissed. In the appeal preferred by the plaintiffs-respondents herein, the learned trial Court held that the defendants were precluded from challenging the sale on the ground that notice was not duly served as they had not preferred the remedy available to them under Order 21 Rule 89 and 90 CPC. It was also held that the possession of the suit land was with the plaintiffs. Accordingly the judgment and decree of the learned trial Court was set aside by the lower appellate Court, and the suit of the plaintiffs-respondents herein was decreed and permanent injunction was granted in his favour. This appeal has been admitted on the following substantial question of law: "Whether non-observance of the provisions of Order 21, Rule 66(2) CPC has rendered the auction proceedings a nullity?" As noticed earlier, it is not in dispute that in execution of the decree in previous suit No. 26A/76 the suit property was purchased by the plaintiffs-respondents in auction sale. The defendants-appellants did not file any application under Order 21 Rule 89 and 90 CPC. The defendants-appellants did not file any application under Order 21 Rule 89 and 90 CPC. In view of above, they are precluded from raising any objection regarding the legality or propriety of sale proceeding as above, including the objection that the notice under Order 21 Rule 66(2) CPC, was not served before the auction sale. Obviously therefore, the consideration by the trial Court in that aspect of the matter was wholly misconceived and beyond its jurisdiction, as has been justifiably held by the learned lower appellate Court. The impugned judgment and decree calls for no interference. The appeal has no merit, and is dismissed accordingly. However, in the circumstances of the case the parties are left to bear their own costs of this appeal.