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2008 DIGILAW 337 (HP)

Lekh Ram v. State Bank of India

2008-07-03

SANJAY KAROL

body2008
JUDGMENT (Sanjay Karol, J.) (Oral) - This revision has been filed against the order dated 7.6.2002 passed by Senior Sub Judge, Bilaspur, H.P. in Misc. Application No. 72/6 of 2002 in Execution Petition No. 23/10 of 1993, whereby the petitioner’s application under Order 21 Rule 94 read with Section 151, CPC was dismissed. While doing the same, the Court also directed that the certificate of sale be issued to Shri Rajender Singh - respondent No. 2 herein. 2.Respondent No. 1-Bank got a decree in its favour, inter alia, against the present petitioner for non-payment of certain advances made by the Bank. Respondent No. 1 filed Execution Petition No. 23/10 of 1993, titled as State Bank of India v. Balak Ram and others before the Senior Sub Judge, Bilaspur, H.P. and in the said proceedings immovable property of the petitioner-Judgment Debtor No. 4 (JD No. 4), comprising in Khata/Khatauni No. 13/16, Khasra No. 95, area 0.19 Bighas, situated in Village Daun (Chamakri Pull), Pargana Ghayalat, Tehsil Arki, District Solan, H.P. was ordered to be put to public auction. The same was sold on 5.9.1999 to respondent No. 2 in an open auction. 3.On 5.10.1999 J.D. No. 4/petitioner filed objections against the same, but, however, without the same being disposed of, it appears that the sale was confirmed by the Court in terms of its order dated 22.2.2000, which reads as under :- “22.2.200 : Present : Mr. R.K. Handa, Adv. for D.H. Mr. S.K. Sood, Adv. For JDs No. 3 & 4. Objections have not been filed against the sale of the property of J.D. No. 4 sold on 16.10.1999, therefore, sale is confirmed. Heard. The execution is dismissed as partly satisfied. The file after completion be consigned to the record room.” 4.It appears that since there was an error in the said order as the sale of the immovable property belonging to JD. No. 4/petitioner was not sold on 16.10.1999, but was in fact sold on 5.9.1999 and also the objections were pending, therefore, an application for review-rectification of the mistake was filed by the petitioner. 5.It also appears that the objections dated 5.10.1999 filed by the petitioner were subsequently dismissed in default on 30.5.2000 and an application for restoration of the same was also moved. 6.The matter, however, did not rest there. 5.It also appears that the objections dated 5.10.1999 filed by the petitioner were subsequently dismissed in default on 30.5.2000 and an application for restoration of the same was also moved. 6.The matter, however, did not rest there. Later on the petitioner filed an application dated 10.5.2001 placing on record the fact that the dispute between the decree-holder and the JDs had been settled amicably and the decree stood satisfied. In the said application, it was, however, stated that JD. No. 4 shall pursue his objections dated 5.8.1999 and 5.10.1999 with respect to the sale of property. 7.Mr. Sood, learned Counsel for the petitioner has submitted that since there was no confirmation of sale as required under Order 21 Rule 92 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC), no certificate of sale could have been issued by the Executing Court under Rule 94. 8.I have heard the learned Counsel for the parties and also perused the record. 9.It is matter of record that the sale dated 5.9.1999 had not been made absolute by the Court prior to the issuance of the sale certificate. This mistake stands corrected by the Court in terms of the impugned order and that is why in the operative portion of the Court has directed the issuance of sale certificate with respect of auctioned land in favour of the auction purchaser. 10.Be that as it may be, the fact of the matter is this that on 10.5.2001 the petitioner had unconditionally withdrawn his objections. It is not the condition of the compromise, entered into between the Bank and the JDs, that the petitioner would be entitled to pursue his remedy for getting the sale set aside. It is also not the terms of the compromise that the sale proceeds was to be paid to the JDs and more particularly, JD. No. 4. A composite compromise appears to have taken place with the Bank by all the JDs when they had taken into compilation auctioned property sold pursuant to the Court order. The compromise had taken place during the pendency of the execution petition on 10.5.2001, which was disposed of in the presence of the counsel appearing on behalf of the Bank and JD. No. 4. For the purpose of better appreciation, the same is reproduced as under :- “10.5.2001.Present : Sh. R.K. Handa, Counsel for the D.H. Sh. The compromise had taken place during the pendency of the execution petition on 10.5.2001, which was disposed of in the presence of the counsel appearing on behalf of the Bank and JD. No. 4. For the purpose of better appreciation, the same is reproduced as under :- “10.5.2001.Present : Sh. R.K. Handa, Counsel for the D.H. Sh. S.K. Sood, Advocate, for JD. No. 4. The ld. counsel for the JD. No. 4 has filed an application for recording satisfaction of the execution of the decrees under one time settlement scheme of the Reserve Bank of India. Similarly, learned Counsel for the D.H. has also filed photo copy of the letter received by him from D.H. bank vide which settlement has taken place between the D.H. bank and JDs, in case the objections are withdrawn by the JD. No. 4, which he has filed against the Bank. He has given in writing in the application that later on in case objections of the J.Ds. are sustained then no money shall be returnable to the JD. No. 4 out of the amount of Rs. 2.52 lacs. In view of this development, this execution is dismissed as satisfied. The file after completion be consigned to the record room.” 11.As is clear even in the order, no liberty has been either sought nor granted to the petitioner-JD. No. 4, the Execution Petition having been satisfied was disposed of and thus there was nothing left to be adjudicated. The petitioner has acquiesced and consented to the same. 12.It is not the case of the petitioner that any of the Rules, Regulations have been violated at the time of ordering the property to be auctioned or at the time of auctioning the same. It is also not the case of the petitioner that the property was under valued and did not fetch the true and correct market value. No arbitrariness in the procedure adopted has been shown. 13.In my view, for the reasons already discussed hereinabove, the contention of the learned Counsel for the petitioner needs to be rejected. The sale certificate has been correctly issued to the auction purchaser on 23.7.2002 pursuant to the order dated 7.6.2002 passed by the Court below. There is no legal infirmity or irregularity or perversity in the impugned order. The petition is accordingly dismissed with no order as to costs. M.R.B. ———————