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2000 DIGILAW 177 (PNJ)

Harpal Singh v. Hari Chand Om Parkash

2000-02-10

IQBAL SINGH

body2000
JUDGMENT Iqbal Singh, J. - The decree holder-respondent got an ex parte decree for Rs. 1,00,416.66 against the judgment debtor-petitioner. In pursuance of the said decree, execution proceedings were initiated by the decree holder-respondent. Warrants of sale were issued by the executing Court. The auction of the property of the judgment debtor-petitioner was held in the presence of the Qanungo and Halwa Patwari, Budhlada. The decree holder-respondent was granted permission by the Court to give bid at the auction sale and he gave the highest bid of Rs. 1,60,000/-. The judgment debtor-petitioner filed objections before the executing Court for setting aside the sale. The executing Court, vide its order dated 6th May, 1998, dismissed the objection petition and confirmed the sale. It is this order of the executing Court which has been challenged by the judgment debtor-petitioner by way of filing this petition under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) 2. I have heard Shri P.S. Dhaliwal, learned Counsel for the judgment debtor- petitioner and Shri D.S. Brar, learned Counsel for the decree holder- respondent and have gone through the records of the case. 3. The contention of the learned Counsel for the judgment debtor-petitioner is that he (judgment debtor) had filed an application under Order 9 Rule 13 of the Code before the trial Court for setting aside the ex parte decree which was dismissed on 27th May, 1997; that he (judgment debtor) filed an appeal against the said order dated 27th May, 1997 which is pending before the lower appellate Court; and that since an appeal against the ex parte decree is pending before the lower appellate Court, the executing Court was not justified in issuing warrants of sale and the sale deserves to be set aside. I do not find any merit in this submission of the learned Counsel for the judgment debtor-petitioner. No doubt, an appeal against the dismissal of the application filed by the judgment debtor-petitioner under Order 9 Rule 13 of the Code is pending before the lower appellate Court, but no stay was granted by the lower appellate Court therein and, therefore, the executing Court could not stall the execution proceedings. The judgment debtor- petitioner was duly served with notice under order XXI Rule 66 of the Code. The judgment debtor- petitioner was duly served with notice under order XXI Rule 66 of the Code. The other contention of the learned Counsel for the judgment debtor- petitioner that the decree holder-respondent did not deposit 1/4th share of the sale price at the time of auction, is also not acceptable. No doubt Rule 84(1) of Order 21 of the Code prescribes that on every sale of immovable property the person declared to be purchaser shall pay twenty-five per cent on the amount of his purchase-money to the officer conducting the sale failing which the property shall forthwith be re-sold, but at the same time, sub-rule (2) of the said Rule lays down that here the decree holder is the purchaser and is entitled to set-off the purchase-money under Rule 72 of Order 21 of the Code, the Court may, dispense with the requirement of sub-rule (1) of Rule 84 of Order 21 of the Code. Rule 72(1) of Order 21 prescribes that no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for a purchase of the property and as per sub-rule (2) of Rule 72 where a decree holder purchases with such permission, the purchase money and the amount due on the decree may be set off against one another and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. As stated above, the decree holder-respondent was granted permission by the executing Court to participate in the auction proceedings and, therefore, he was not required to deposit 1/4th share of the sale price. As such, the objection petition was rightly dismissed and sale was confirmed by the executing Court in accordance with law. 4. For the aforesaid reasons, I do not find any illegality or material irregularity in the impugned order which may warrant exercise of revisional jurisdiction of this court under Section 115 of the Code. This revision petition is, accordingly, dismissed. Revision dismissed.