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2003 DIGILAW 697 (PNJ)

Mehar Singh v. Firm Pakher Singh

2003-05-14

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. Present revision petition is directed against the order passed by the executing court dismissing the objections filed by the petitioner under the provisions of Order 21 Rule 90 of the Code of Civil Procedure objecting to the sale of 44 kanal 11 marla of land sold in court auction on 3.11.1990. At the outset, the counsel for the petitioner submitted that this petition be treated as one under Article 227 of the Constitution of India. I order accordingly. 2. An exparte money decree in the sum of Rs. 1,03,396/- was passed on 1.2.1990. The respondent decree holder filed an application for execution of the said decree on 2.3.1990. On execution application having been filed, the learned executing court issued warrants of attachment for 15.4.1990. On 16.4.1990, the court has ordered that the attachment has been effected. 3. After attachment, the decree holder moved an application under Order 21 Rule 66 CPC for settling the terms of proclamation of sale. Notice of the said application was issued for 18.9.1990. The petitioner is purported to have refused the service of such notice on 27.8.1990. Order dated 18.9.1990 shows that the learned trial court has proceeded to settle the terms for proclamation of sale in the absence of judgment debtor as it was reported that he has refused service and affixation has been made. 4. The court ordered the sale to be effected on 3.11.1990. The auction was conducted on 3.11.1990 wherein brother of the partner of the plaintiff firm was the successful purchaser of the land measuring 44 kanal 11 marla for a sum of Rs. 1,21,000/-. The petitioner moved an application for stay of the execution of the decree in proceedings for setting aside of exparte decree and also filed objections on 19.11.1990. The such objections have been dismissed by the executing court. The appeal has also been dismissed. Aggrieved against such orders, the petitioner has filed the present revision petition. 5. The petitioner has filed objections, interalia, on the grounds that he has not received any notice under Order 21 Rule 66 CPC and that the land has been auction in favour of Gurcharan Singh for Rs. 1,21,000/- though the price of the land was Rs. 8 lacs. It has been further mentioned that no auction was conducted at the spot. The plaintiff and Gurcharan Singh have been working in the same business. 1,21,000/- though the price of the land was Rs. 8 lacs. It has been further mentioned that no auction was conducted at the spot. The plaintiff and Gurcharan Singh have been working in the same business. Auction is conducted in the presence of six persons but none of them belong to village Deviwala where the land is situated. All the six persons are near and dears of the partners of the decree holder firm. There is no detail furnished on the warrants of auction order. No munadi was ever conducted before land in question was auctioned. 6. The decree holder filed reply. He has submitted that on 27.8.1990, the judgment debtor was present in court and his statement was recorded for setting aside exparte decree but he refused to accept notice under Order 21 Rule 66, therefore, he was proceeded against exparte. The other allegations of the judgment debtor were denied. 7. Learned executing court framed issue "where sale dated 3.11.1990 is liable to be set aside on the ground mentioned in the application dated 19.11.1990?OP Objector". In support of objections, the objector appeared as OW2 and produced Bachan Singh OW1 and Sat Narain as OW3. Decree holder examined few other witnesses. OW1 has stated that his land is adjacent to the land of the JD. No Kanungo or Tehsildar ever visited village Deviwala. There were on auction proceedings at the site in dispute. On the other hand Samp Singh HW1 was Tehsildar at the time of auction of the property. He is the one who conducted the auction proceedings. He showed his ignorance that the rate of land was Rs. 2 lac per kila. He deposed that the persons belonging to village Deviwala were identified by Patwari but no person from village Deviwala gave bid auction. 8. A perusal of the bid sheet DH2 would show that the five persons participated in the auction. The proclamation notice does not contain any valuation of land and that how much land would be sufficient to satisfy the decree. The conduct of the auction proceedings wherein none of the villagers of the village, where the land is situated, has participated in auction, shows that it is a close-door affair conducted in a calendestine manner to deprive the petitioner of his land even though the proceedings for setting aside exparte decree alongwith an application for stay were pending before the court. The petitioner has moved an application for setting aside exparte decree and has appeared as witness in court. DHW6 Gurdit Singh process server had been produced who has deposed that Pat Ram process server has died who was deputed to serve the judgment debtor in an application under Order 21 Rule 66 CPC. There is no evidence that the affixation of summons were made. In fact no process of affixation could be carried out in the court premises as the summons could be affixed only on the known address of the defendant. The summons are purported to be refused by the judgment debtor in court premises. Such report has been witnessed by the plaintiff alone. Obviously, the plaintiff has a motive to procure the report but the learned executing court failed to discharge its duty when such refusal has been considered as sufficient service. The defendant was taking steps for setting aside of a decree and has moved an application for stay of the proceedings. There is no reason why he should refuse the summons when he is present in court. 9. After going through the record, I am satisfied that the report on the summons is not correct. The defendant was represented by counsel. Presiding Officer could very well call upon the defendant or his counsel to accept notice in court of such an application but no such procedure was adopted so as to facilitate sale of the property in a calendestine manner. Application under Order 21 Rule 66 CPC was not served upon the judgment debtor nor the valuation of the property was given by the decree holder. Therefore, the sale of the property suffers from material illegality and irregularity and thus, the same is liable to set aside. 10. A perusal of the record shows that the learned executing court has conducted the proceedings in most unsatisfactory manner. Once, there was an application for stay of the execution proceedings before the executing court in an application for setting aside exparte decree, the trial court should not have proceeded to sell the property in posthaste manner. The sale of the land without notice to the judgment debtor on the basis of refusal report on an application under Order 21 Rule 66 CPC shows that the proceedings have been conducted to grant undue benefit to the decree holder. 11. The sale of the land without notice to the judgment debtor on the basis of refusal report on an application under Order 21 Rule 66 CPC shows that the proceedings have been conducted to grant undue benefit to the decree holder. 11. Vide separate order of even date, the exparte proceedings initiated against the petitioner have been found to be unjustified on the condition that sum of Rs. 1,75,000/-deposited on 29.11.1994 be kept in fixed deposite till the decision of suit. 12. Consequently, this revision petition is accepted. The sale conducted on 3.11.1990 and the order passed by the courts below is set aside with no order as to costs.