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2008 DIGILAW 2130 (PNJ)

Mannu (minor) v. Pritam Singh

2008-12-16

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J.:-The petitioners filed an application for setting aside the sale of New Walia Cold Store, Nakodar Road, Jalandhar (for short the Cold Store) which took place on 13.5.1988 to the extent of 2/3rd share. They were non suited and the appeal filed also stands dismissed. 2. The petitioners have impugned the order passed by the learned courts below by invoking revisional jurisdiction of this court. 3. The petitioners filed objections against the sale on the ground that litigation was going on regarding the ownership of the Cold Store and by way of judgment and decree dated 29.8.1988 this court in Regular Second Appeal was pleased to hold that the petitioners were entitled to 2/3rd share in the Cold Store and rest of 1/3rd share was held to be under the ownership of Harbans Kaur. 4. The decree holder Pritam Singh succeeded in getting a money decree for a sum of Rs.10,000/-. He sought the execution of the decree and to satisfy the said decree the Cold Store was ordered to be auctioned on 13.5.1988. 5. The petitioners claimed that the auction was illegal and further that as there was no money decree against the objector/petitioners being owners of 2/3rd share the sale has affected the rights of the present petitioners and thus, the same was liable to be set aside under Order 21 Rule 90 of the Code of Civil Procedure (for short the Code). It was claimed that the sale be declared invalid and void. 6. The application was opposed by the auction purchaser on the plea that the objections were time bared. It was claimed that it was within the knowledge of Charan Singh, attorney of Neera that the sale had taken place and since there was no fraud or irregularity in conducting the sale the same was not liable to be set aside. The auction purchaser being highest bidder deposited the amount in the court and thus, it was claimed that the objections be dismissed. 7. Learned executing court framed issues arising out of the pleadings and and after the contest objections were dismissed. 8. The auction purchaser being highest bidder deposited the amount in the court and thus, it was claimed that the objections be dismissed. 7. Learned executing court framed issues arising out of the pleadings and and after the contest objections were dismissed. 8. Learned court below has been pleased to dismiss the objections filed by the petitioners by holding that the petitioners became owners on 29.9.1988 i.e. on the date of passing of the judgment and decree by this court in the regular second appeal whereas property was sold prior to that date i.e. 13.5.1988. 9. The learned courts also observed that prior to the passing of the judgment and decree passed by this court Gurdev Singh, Har Kaur and Amarjit Kaur considered themselves as owners of the Cold Store and filed objections under Order 21 Rule 58 read with section 151 of the Code and the said objections were dismissed and Cold Store was put to auction. The plea of the petitioners that Mannu was minor at the time of auction and no proper procedure was followed was also rejected by observing that the petitioner Mannu had no right to the property on 13.5.1988. Thus, dismissed the objection petition. 10. Findings of the learned courts below cannot be sustained. It is well settled law that the courts only interpret rights of the parties and by way of judgment and decree passed by this court entitlement to inherit 2/3rd share by the petitioners would relate back to the date of death of original owner as succession never remains in abeyance and therefore, the courts below were not right in holding that the petitioners did not have right of ownership in the property on 13.5.1988 when the auction was conducted. 11. Mr. Ashok Aggarwal, learned senior counsel appearing on behalf of the petitioners has also challenged the sale to be in violation of Order 21 Rule 66 (2) and 54 (1) (a) of the Code on the plea that service of notice on the judgment debtor is mandatory and in the absence of notice sale would be nullity. It is also the contention of the learned senior counsel that in the present case for execution of a decree of Rs.10,000/- whole of cold storage has been ordered to be sold and thus, provisions of Order 21 Rule 66 of the Code stands violated which makes the sale as void. It is also the contention of the learned senior counsel that in the present case for execution of a decree of Rs.10,000/- whole of cold storage has been ordered to be sold and thus, provisions of Order 21 Rule 66 of the Code stands violated which makes the sale as void. In support of this contention learned counsel for the petitioners has placed reliance on the judgment of Hon’ble Supreme Court in the case of Desh Bandhu Gupta Vs. N.L.Anand & Rajinder Singh, (1994) 1 SCC 131. 12. Learned senior counsel for the petitioners also contended that the present sale is liable to be set aside being in violation of Order 21 Rule 64 of the Code as the court has failed to comply with the mandatory provisions of law to determine as to which portion of the property was required to be sold to satisfy the decree. The contention of the learned senior counsel, therefore, is that the learned court was bound under law first to decide whether it was necessary to put entire attached property to sale or such portion thereof as might deem necessary to satisfy the decree. 13. In support of this contention, reliance has been placed on the judgment of Hon’ble Supreme Court in the case of Ambati Narasayya Vs. M.Subba Rao and another 1990 (1) Revenue Law Reporter 1. 14. Reliance has also been placed on the judgment of Hon’ble Supreme Court in the case of S.S.Dayananda Vs. K.S.Nagesh Rao & Ors. JT 1997 (3) SC 214; Balakrishnan Vs. Malaiyandi Konar, 2006 (2) RCR (Civil) 168. 15. Learned senior counsel for the petitioners also contended that even if the application under Order 21 Rule 90 of the Code was not within time still once the sale was found to be nullity being violative of Order 21 Rule 64 of the Code the court had inherent powers to set aside the sale. In support of this contention reliance has been placed on the judgment of Hon’ble Rajasthan High Court in the case of Mubarak Begam and Anr. Vs. Sushil Kumar and others AIR 1957 Rajasthan, 154. 16. The contention of the learned senior counsel for the petitioners also is that in the present case the decree itself was inexecutable. In support of this contention reliance has been placed on the judgment of Hon’ble Rajasthan High Court in the case of Mubarak Begam and Anr. Vs. Sushil Kumar and others AIR 1957 Rajasthan, 154. 16. The contention of the learned senior counsel for the petitioners also is that in the present case the decree itself was inexecutable. In support of this contention learned senior counsel appearing on behalf of the petitioners referred to the judgment and decree passed by the learned courts below which was sought to be executed. 17. The contention of the learned senior counsel is that the cold store was under the proprietary concern of Raghbir Singh which was valued at more than a crore of rupees which has been sold to satisfy a decree of Rs.10,000/- only at the total auction price of sale of Rs.1,05,000/-. It is the case of the petitioners that Raghbir Singh died on 25.12.1974 leaving behind his legal representatives i.e. Neera widow, Har Kaur mother, and Ms. Maanu daughter. 18. A suit for recovery was filed by Dalip Singh and Pritam Singh for the recovery of Rs.15,000/- against six defendants i.e. Gurdev Singh son of Lachhman Singh; Smt.Harkaur widow of Lachhman Singh; Amarjit Kaur daughter of Lachhman Singh; Neenu wife of Gurdev Singh; Mohinder Singh and New Walia Cold Storage, Abadpura, Najkodar Road, Jalandhar through Mohinder Singh, defendant No.5. The petitioners who were entitled to 2/3rd share of property of Raghbir Singh were not impleaded as party to the suit. 19. Learned trial court decreed the suit against defendant No.5 only i.e. Mohinder Singh, Manager of Cold Store for a recovery of Rs.10,000/-. 20. The judgment and decree was challenged by way of appeal by Mohinder Singh as also by Cold Store through said Mohinder Singh. Learned lower appellate court passed a decree in favour of Pritam Singh and decreed the suit against Cold Store through Mohinder Singh, Manager. 21. Thus, it would be seen that cold store which was a proprietary concern of Raghbir Singh who had already expired could not be maintained through its Manager as it did not have its own legal independent identity. Thus, it would be seen that the decree was passed against non-existing legal entity/person. 21. Thus, it would be seen that cold store which was a proprietary concern of Raghbir Singh who had already expired could not be maintained through its Manager as it did not have its own legal independent identity. Thus, it would be seen that the decree was passed against non-existing legal entity/person. Learned courts below have failed to notice this important aspect of the matter and have rejected the objections filed by the petitioners by treating them to have acquired the ownership after the sale under the decree of this court. 22. As already observed above the finding recorded by learned courts below cannot be sustained in the eyes of law as the decision of this court holding the petitioners to be the owners of the property would relate back to the death of Raghbir Singh and thus, on the date of passing of the decree the petitioners were owners to the extent of 2/3rd share and therefore, the property could not be sold in execution of decree without impleading them as a party. 23. The learned courts below have not gone into this aspect of the matter while deciding the objections with regard to the validity of the sale. The learned courts below also have not recorded finding on other points by treating petitioners to be having no interest on the date of sale. 24. For the reasons stated above, this revision is allowed. The impugned orders are set aside. 25. The case is remanded back to the learned Executing Court to consider the objections filed by the petitioners by taking them to be owners of the property since the date of the death of Raghbir Singh. Keeping in view the fact that the matter is pending since long the Executing Court is directed to dispose of the objections expeditiously, in accordance with law. ------------------