Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 1219 (ALL)

SHIVCHARAN v. A. D. J. , RAMPUR

2007-04-26

S.U.KHAN

body2007
( 1 ) AT the time of arguments, no one appeared on behalf of the constesting respondents, hence only the arguments of the learned counsel for the petitioner were heard. ( 2 ) RESPONDENT No. 3 Asa Ram since deceased and survived by legal representatives instituted a suit for recovery of Rs. 5,000/- against respondent No. 4, Shiv Nandan being O. S. No. 58 of 1975. Agricultural land of defendant was attached before judgment on 27. 07. 1975 by the Trial Court. In spite of the attachment, the defendant sold half of the attached property to the petitioner and remaining half to his wife through registered sale deed dated 30. 07. 1975. The suit was decreed on 20. 10. 1975. Thereafter, application for execution was filed. The decreetal amount, at that time, was Rs. 6825. 50/ -. Execution Case was registered as Execution No. 20 of 1978, Asa Ram Vs. Shiv Nandan. Execution was sought through sale of the attached property. The agricultural property was sold in auction for Rs. 16,000/ -. Vijay Pal Singh, respondent No. 2 was the auction purchaser. Auction took place on 07. 08. 1979. Thereafter, objections were filed by the petitioner under Order XXI Rules 66, 89, 90 and 93 and Section 47 and 151, C. P. C. Objections were filed on 25. 03. 1980 and were registered as Misc. Case No. 34 of 1980. Executing Court/civil Judge, Rampur, allowed the objections through order dated 19. 05. 1981 and set aside the auction. Trial Court held that in case only that portion of the land had been auctioned, which was sold by the judgment debtor to his wife, then entire decree would have been satisfied. It further held that in the proclamation of sale initially decree holder deliberately undervalued the property and did not show any charge on the said property. Decree holder gave the valuation of the property to be Rs. 14,000/- in the proclamation of sale. During the pendency of proceedings, wife of judgment debtor had died and the property sold by him to his wife came again to him through succession. By reading the judgment of the Trial Court, it is apparent that interest of justice was paramount in the mind of the learned judge. 14,000/- in the proclamation of sale. During the pendency of proceedings, wife of judgment debtor had died and the property sold by him to his wife came again to him through succession. By reading the judgment of the Trial Court, it is apparent that interest of justice was paramount in the mind of the learned judge. It is mentioned in the order of the Trial Court that auction purchaser had filed an application that he did not want to take the land, which he had purchased in auction and he wanted refund of his money. ( 3 ) AGAINST the order of the Executing Court dated 19. 05. 1981 cancelling the auction, auction purchaser and decree holder filed appeal. The appeal was registered as Misc. Civil Appeal No. 87 of 1981. A. D. J. , Rampur through order dated 12. 03. 1984 allowed the appeal and set aside the order of the Trial Court and dismissed the objections of petitioner. This writ petition is directed against aforesaid order of the Appellate Court dated 12. 03. 1984. ( 4 ) THE Appellate Court approved the findings of the Trial Court/executing Court. However, the Appellate Court allowed the appeal only and only on the ground of limitation. It held that the objections filed by the petitioner were barred by time. It was contended before the Appellate Court by the petitioner that the plea of limitation was not taken before the Trial Court by the auction Purchaser. In that regard, the Appellate Court held that plea of limitation could be taken even for the first time before the Appellate Court in view of Section 3 of the Limitation Act. The Appellate Court held that objections ought to have been filed within 60 days from the date of sale. Argument of petitioner that sale was nullity and his objections were under Section 47, C. P. C. , also for which limitation of two months did not apply, was also noticed by the Appellate Court. The Appellate Court in that regard mentioned that the petitioner in his objections did not plead that the sale was nullity and void, he also did not pray for declaration that the sale was void and he had only prayed to have the auction sale set aside under order 21 Rule 90, C. P. C. and other sections on the ground of irregularity in attachment and sale. Language used in objections is not conclusive. If the allegations made in the objections may fall under Section 47, C. P. C. , then application will have to be treated under the said Section. Moreover, Section 47, C. P. C. had also been mentioned at the top of the application as one of the provisions under which application was being filed. ( 5 ) UNDER Order 21 Rule 64, C. P. C. , it is provided that the executing court may order that attached property on such portion thereof as may seem necessary to satisfy the decree shall be sold. Provisions of Order 21 Rule 64, C. P. C. are mandatory and their violation renders the sale nullity. Under the said provision, if by auctioning part of the property, decreetal amount may be realized, then sale of the whole property is illegal. In this regard reference may be made to the authority reported in Balakrishnan Vs. Malaiyandi Konar, AIR 2006 SC 1458 . Under Section 64 (1), C. P. C. , it is provided:- "where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. " ( 6 ) FROM the above, it is clear that sale of attached property is void only to the extent of claim enforceable under the attachment, i. e. decreetal amount in the instant case. In view of this, a purchaser of the attached property is entitled to assert in Court that the sale be treated to be void only to that extent of the sold property, which is sufficient to satisfy the decree. Accordingly, it is essential that notice must be issued to such purchaser in execution proceedings. Moreover, such purchaser is entitled to participate in the execution proceedings at the stage of preparation of proclamation of sale. He is very much interested in the amount of sale for the reason that if the property is sold for more than the decreetal amount, then balance would be payable to him. No notice to the petitioner at any stage was issued. He is very much interested in the amount of sale for the reason that if the property is sold for more than the decreetal amount, then balance would be payable to him. No notice to the petitioner at any stage was issued. Even though in the aforesaid Supreme Court authority, it has been held that objection in terms of Order 21 Rule 64, C. P. C. can be raised only till confirmation of sale. However, in view of the fact that it was necessary to issue notice to the petitioner who had purchased the property in spite of attachment, hence the said time limit does not apply to the petitioner. It is applicable only to judgment debtor. ( 7 ) THE decree holder had himself given the valuation of the property to be Rs. 14,000/- and the property was sold for Rs. 16,000/ -. Half of any of these amounts would have fully satisfied the decree. ( 8 ) MOREOVER, when auction purchaser himself filed an application that he was not interested in taking the property, then the sale ought to have been set aside. Accordingly, writ petition is allowed. Impugned order passed by the Appellate Court is set aside. Order, passed by the Trial Court/executing Court dated 19. 05. 1981, is restored. .