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Himachal Pradesh High Court · body

2017 DIGILAW 261 (HP)

Parma Nand v. Kasturi Lal

2017-03-29

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The petitioner herein suffered a conclusive binding decree for recovery of money, decree whereof stood rendered by the learned Sub Judge 1st Class, Dehra, District Kangra, H.P., in Civil Suit/RBT No. 27/99/91, verdict whereof stood pronounced on 27.12.2000. On rendition of the aforesaid conclusive decree, the plaintiffs/decree holders instituted an application under Order 21, Rule 30 of the Code of Civil Procedure before the learned Executing Court wherein they sought realization of the decretal amount from the Jds, in the manner hereinafter extracted :- “(1) That in C.S. titled Kasturi vs. Hari Chand and others C.S. No. RBT 27/99/91 the Hon'ble Court S.J.I. Dehra on 27.12.2000 have passed the order decree against the respondents to the tune of Rs.3020/- being LRS of late Sh. Santu to the extent their shares inherited from late Sh. Santu. (2) That the respondents have not paid the amount recoverable by applicant despite the decree and order passed by the Hon'ble Court. (3) That JD's No.1 to 3 have inherited share of khilwatta, who have succeeded to Late Sh. Santu to the extent of ¼ share. Respondent No.(4) ABCD have inherited the share of late Sh. Gian Chand, who have succeeded to late Sh. Santu to the extent of ¼ share. Respondent No.4 also have succeeded to late Sh. Santu to the extent of ¼ shares. Respondent No.5 also have succeeded to late Sh. Santu to the extent of ¼ shares. Similarly respondent NO.6 have succeeded to late Smt. JOK to late Santu to the extent of ¼ shares. 4. That as per share respondents No.1 to 3 had to pay Rs.755/- in equal share, respondent No.4 ABCD had to pay Rs.755 in equal share. Respondent 5 to the extent of Rs.755/- and respondent No.6 to the extent of Rs.755/- to the applicant. 5. That respondents have inherited the other land of late Sh. Santu which is comprised khata 104, khatauni 174, khasra Nos. 97,99, 136, measuring 0-03-45 hectares and in khata No. 106, khatoni No.176, khasra N.98, 106, 107 area 0-09-58 hectares situated in Mohal Katoi Mauza Chakath, Tehsil Dehra, District Kangra, H.P. entered, (H.P.) entered jamabandi 1999-2000. 6. That no appeal against the order and decree is pending or has been filed as per knowledge of the applicant. (7)......................................................” 2. 97,99, 136, measuring 0-03-45 hectares and in khata No. 106, khatoni No.176, khasra N.98, 106, 107 area 0-09-58 hectares situated in Mohal Katoi Mauza Chakath, Tehsil Dehra, District Kangra, H.P. entered, (H.P.) entered jamabandi 1999-2000. 6. That no appeal against the order and decree is pending or has been filed as per knowledge of the applicant. (7)......................................................” 2. Notice upon execution petition No. 19 of 2003 stood ordered by the learned Executing Court to be issued upon the JDs. The process server concerned, concerted to personally serve JD Parmanand through ordinary mode. The endorsement made by the process server concerned on the reverse of the apposite summons, discloses qua on his visiting the abode of Parmanand, on 5.9.2003 also his concerting to locate him thereat, whereas his apposite concert(s) proving abortive, thereupon, his delivering a copy of the summons(es) to his daughter Vijeta Kumari, also he echoes therein qua the latter willingly accepting them. He also makes a disclosure in the apposite summons qua Vijeta Kumari, the daughter of Parmanand residing along with the latter. JD Parmanand despite standing served through his daughter Vijeta Kumari omitted to on the relevant date, record his presence before the learned executing Court, whereupon the latter proceeded to order qua his being proceeded against exparte. 3. The execution petition, in the absence of JD Pramanand recording his presence therebefore progressed uptil the stage of the decree holder(s) on 15.2.2005 under an application constituted therebefore under Order 21, Rule 64 of the CPC, motioning it, for sale of the attached property/assets of the Jds, whereon, the learned Executing Court proceeded to record an order for issuance of notice(s) under Order 21, Rule 54 (1-A) of the CPC upon the JDs for hence the terms of sale standing settled, It on 24.3.2005 imputed credence to the sworn affidavit furnished before it by the process server concerned holding, echoings qua his effectuating service of notice(s) aforesaid upon JD Nos. 1,2, 3, 4(d) and 5, whereupon the learned Executing Court, on JD Parmanand besides other JDs omitting to on the date aforesaid record their respective appearance(s) therebefore hence recorded a direction qua theirs standing proceeded against ex-parte. 1,2, 3, 4(d) and 5, whereupon the learned Executing Court, on JD Parmanand besides other JDs omitting to on the date aforesaid record their respective appearance(s) therebefore hence recorded a direction qua theirs standing proceeded against ex-parte. Both the orders of the learned Executing Court respectively recorded on 27.01.2004 and on 24.03.2005 wherein it directed qua JD Parmanand standing proceeded against ex-parte, stood not concerted by him to be set aside nor obviously he thereafter proceeded to participate in the apposite execution petition. 4. The initial effectuation of service of summons by the process server concerned upon JD Parmanand through his daughter Vijeta Kumari, effectuation whereof occurred prior to the order recorded on 24.03.2005 by the learned Executing Court does attract qua him an apposite prohibition engrafted under Order 5, Rule 15 of the CPC, significantly, against the assay process server concerned concerting to serve a copy of summons upon his daughter Vijeta Kumari, importantly, when for reasons ascribed hereinafter the mandate held therewithin stood evidently infringed, at the stage contemporaneous qua the initial effectuation of service upon JD Parmanand through his daughter whereupon the aforesaid manner of JD Parmanand standing served suffers from a vice of invalidity also the order(s) pronounced by the learned Executing Court qua his for want of his appearance therebefore, his being hence proceeded against ex-parte, concomitantly stand stained with jurisdictional fallibility. Provisions of Order 4, Rule 15 stand extracted hereinafter:- “15. Where service may be on an adult member of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no cogent empowered to accept service of summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him. The aforesaid provisions hold a palpable mandate upon the process server concerned, to prior to his proceeding to effectuate a copy of the relevant summons upon any adult member residing along with the addressee, his making echoings in his report qua prior thereto, his concerted efforts in discovering the (a) addressee at his homestead/abode, not bearing any fruition; (b) there being no likelihood qua his being found at his abode within a reasonable time. However, the aforesaid echoings do not find occurrence in the relevant summons, whereupon, the tendering of a copy thereof besides acceptance thereof by Vijeta Kumari, the daughter of JD Parmanand hence would not tantamount to any valid effectuation of service upon him. 5. Be that as it may, the effect, if any, of an invalid effectuation of service upon JD Parmanand on 5.9.2003, in sequel, whereto the learned Executing Court proceeded to on 17.01.2004 record an order qua his being proceeded against ex-parte is reinteratedly qua the order aforesaid hence also acquiring a vice of nullity. Nonetheless vices aforestated staining the aforesaid order would stand subsumed, on evident upsurgings occurring in the relevant record, in portrayal qua prior to the learned Executing Court proceeding to order for issuance of proclamation of sale of the attached assets of the JDS, through a public auction, it revering the mandate of Order 21, Rule 66 of the CPC, provisions whereof stand extracted herein after:- “Rule 66. Proclamation of sales by public auction.- (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale and specify as fairly and accurately as possible-(a) the property to be sold [ or, where a part of the property would be sufficient to satisfy the decree, such part]; (b) the revenue assessed upon the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government. (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property; [Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment debtor unless the Court otherwise directs; Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties.] (3) Ever application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.” Sub-rule (2) to Rule 66 of Order 21of the CPC, casts a peremptory legal obligation upon the Executing Court, to, preceding its drawing a proclamation of sale of the assets/immovable property of the JD(s), wherefrom the decretal amount is intended to be satisfied, its ordering for issuance of notice upon the JDs concerned, notice whereof indicating therewithin the time and place of sale, of the attached assets of the JD, through a public auction, besides its ensuring qua the apposite notice(s) standing validly served upon the JDs. On anvil of the aforesaid mandate embodied in the afore extracted relevant provisions of the CPC, judgment debtor Parmanand in his application constituted under the provisions of Order 21, Rule 89 of the CPC, before the learned executing Court had thereupon, vigorously canvassed qua prior to the learned Executing Court drawing up the apposite proclamation of sale, of his attached assets, through a public auction, its irrevering the mandate of sub-rule (2) to Rule 66 of Order 21 of the CPC, comprised in its, in digression therefrom neither ordering for issuance of notice of sale, of his assets, through a public auction nor obviously his standing served, consequently, he contended qua a visible infraction of the peremptory mandate of subrule (2) to Rule 66 of Order 2, bolstering his espousal qua the relief canvassed in his application hence being affordable to him. He also places reliance upon a decision of the Hon'ble Apex Court in Desh Bandu Gupta versus N.L. Anand and Rajinder Singh, reported in (1994)1 SCC 131 , the relevant paragraphs NO.9 and 10 whereof are extracted hereinafter:- “[9] However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing court. We have already noted the order of the court to conduct the sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21 Rule 5 the court shall ascertain the compliance of the prerequisites contemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein. If a notice was served on the judgment-debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the court, under Rule 23 the court "shall order the decree to be executed". If an objection is raised to the execution of the decree, by operation of sub-rule (2) thereof, "the court shall consider such objections and make such order as it thinks fit". If an objection is raised to the execution of the decree, by operation of sub-rule (2) thereof, "the court shall consider such objections and make such order as it thinks fit". Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting the judgmentdebtor from transferring or creating encumbrances on the property. Under Rule 64 the court may order sale of the said property. Under Rule 66 (2 proclamation of sale by public auction shall be drawn up in the language of the court and it should be done after notice to the decree-holder and the judgment-debtor and should state "the time and place of sale" and "specify as fairly and accurately as possible" the details specified in clauses (a) to (d) of sub-rule (2) thereof. The Civil Rules of Practice in Part L in the Ch. 12 framed by the High court of Delhi 'sale of Property and Delivery to the Purchaser' Rule 2 provides that whenever a court makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a convenient date not being distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66 (2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders. In Rule 4 captioned 'settlement of Proclamation of Sale, Estimate of Value' it is stated that on the day so fixed, the court shall, after perusing the documents, if any, and the report referred to in the preceding paragraph, after examining the decree-holder and judgment-debtor, if present, and after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66 (2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give at proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and got published in the manner prescribed by Rule 67. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give at proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and got published in the manner prescribed by Rule 67. The court should authorise its officers to conduct the sale. Under Rule 68 the sale should be conducted at "the place and time" specified or the time may be modified with the consent in writing of the judgment-debtor. The proclamation should include the estimate, if any, given by either judgment-debtor or decree-holder or both the parties. Service of notice on judgment-debtor under Order 21 Rule 66 (2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. Judgment-debtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratari this court, after noticing the conflict of judicial opinion among the High courts, held that a review of the authorities as well as the amendments to Rule 66 (2) (c) make it abundantly clear that the court, when staling the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66 (2) (e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66 (2) (e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i. e. the value of the property, that is, after all, the whole object of Order 21, Rule 66 (2) (e), Civil Procedure Code. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66 (2) (c). In discharging it, the court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued the property, and it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully be stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from an The proclamation should include the estimate, if any, given by either judgmentdebtor or decree-holder or both the parties. Service of notice on judgment-debtor under Order 21 Rule 66 (2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. Judgment-debtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratari this court, after noticing the conflict of judicial opinion among the High courts, held that a review of the authorities as well as the amendments to Rule 66 (2 (c) make it abundantly clear that the court, when staling the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66 (2) (e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i. e. the value of the property, that is, after all, the whole object of Order 21, Rule 66 (2) (e) , Civil Procedure Code. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66 (2) (c). In discharging it, the court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued the property, and it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully be stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the court that the details enumerated in sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and is given opportunity in the settlement of the value of the property. The absence of notice causes irremediable injury to the judgmentdebtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under Rule 66 (2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment-debtor disables him to offer his estimate of the value who better knows its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment-debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment-debtor or the decree-holder. A sale made, therefore, without notice to the judgment-debtor is a nullity since it divests the judgment-debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutory that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. It is very salutory that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopala Ayyar v. Ramachandra Ayyar the full bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47. [10] Above discussion indicates a discernible rule that service of notice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66 (2), unless proviso is applied (if not already issued under Order 21 Rule 22, and service is mandatory. It is made manifest by Order 21 rule 54 (1-A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation the judgmentdebtor shall be served with a notice before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgmentdebtor appears without notice and thereby waives the service of notice.” Evidently, the relevant records omit to make any underscorings qua the learned Executing Court, prior to its ordering for issuance of proclamation of sale, of the attached assets/immovable property of the JDs through a public auction, its ordering for issuance of notice(s) under sub-rule (2) to Rule 66 of Order 21 of the CPC upon the JDS nor obviously it ensured qua the apposite notice(s) standing served upon JD Parmanand. Significantly, hence, an apparent infraction of the mandate of sub-rule (2) to Rule 66 of Order 21 of the CPC has visibly occurred. Significantly, hence, an apparent infraction of the mandate of sub-rule (2) to Rule 66 of Order 21 of the CPC has visibly occurred. However, no benefit can stand derived therefrom by JD Permanand, negation of relief qua him on anvill aforesaid stands encapsulated in the evident factum qua though the aforesaid mandate encapsulated under sub-rule (2) to Rule 66 of Order 21 of the CPC standing visibly infringed by the learned Executing Court yet his not adducing the enjoined evidence, in display qua upon the apposite application constituted under Order 21, Rule 54 of the CPC by the decree holder before the learned Executing Court, the latter neither ordering for issuance of notice(s) upon them nor ensuring qua theirs standing served. In the event of, on an incisive perusal of the record, forthright evidence emanating, holding revelations qua upon an application standing constituted under Order 21, Rule 64 of the CPC by the decree holders before the executing Court, the latter ordering qua issuance of summons(es) upon the JDs also obviously, its ensuring qua theirs standing personally validly served, thereupon the proviso engrafted in sub rule (2) of Rule to Rule 66 of Order 21 of the CPC would hold command besides clout also would dilute the effect of infringement(s), if any, made by the learned Executing Court vis-a-vis the mandate of sub rule (2) of Rule 66 to Order 21 of the CPC, significantly when the apposite proviso, to sub rule (2) to Rule 66 of Order 21 of the CPC, holds vivid echoings qua where the learned Executing Court has proceeded to within the ambit of Order 21, Rule 54 (1-A) of the CPC, hence order for issuance of notice(s) upon the Jds, thereupon no subsisting statutory obligation standing cast upon the learned Executing Court, to also obey the mandate of sub rule (2) of Rule 66 of Order 21 of the CPC unless it records a direction for compliance therewithin yet standing warranted. Provisions of Order 21, Rule 54 stand extracted hereinafter: “54 attachment of immovable property.- (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such charge. Provisions of Order 21, Rule 54 stand extracted hereinafter: “54 attachment of immovable property.- (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such charge. [(1A) The order shall also require judgment debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.] (2) The order shall be proclaimed at some place on or adjacent of such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate [and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.]” Reiteratedly, thereupon, it stands not enjoined to within the domain of sub rule (2) of Rule 66 to Order 21 of the CPC hence order for issuance of notice(s) upon the JDS concerned. For making the relevant unearthings from the record which exists hereat, an allusion to the trite factum of the learned executing Court recording an order on 15.02.2015 for issuance of notice(s) upon JDS concerned, for hence eliciting their participation before it for settling the terms of proclamation of sale, of the relevant attached property, through a public auction, brings-forth an apt conclusion from this Court qua the learned Executing Court hence begetting compliance with the mandate of sub rule (1A) to Rule 54 of Order 21 of the CPC, whereupon, it stood relieved of the statutory obligation of revering the mandate of sub rule (2) to Rule 66 of Order 21 of the CPC. Conspicuously, also when in pursuance to the learned Executing Court, hence, begetting compliance with sub rule (1A) to Rule 54 of Order 21 of the CPC, the process server concerned making endorsement(s) on the reverse of the apposite notices qua JD Parmanand standing personally served, factum whereof attains vigorous evidentiary worth arising from the factum of Parmanand endorsing his signature(s) on the reverse of the apposite notice(s), also with JD Parmanand not disputing the authenticity of his signatures existing on the reverse of notice served upon him under sub rule (1A) to Rule 54 of Order 21 of the CPC, thereupon, with JD Parmanand hence standing personally served within the ambit of the proviso of sub rule (2) to Rule 66 of Order 21 of the CPC also with the aforesaid proviso operating as an exception to the peremptory mandate constituted in sub rule (2) of Rule 66 of Order 66 of the CPC besides obviously thereupon, infraction, if any, by the learned Executing Court of the mandate of the aforesaid substantive provisions, would not stain the sale by public auction of the attached assets of the JDs , whereupon, even if the learned Executing Court hence prior to its ultimately drawing up the apposite proclamation of sale of the attached property(ies) of the JDS, omitted to under the aforesaid provisions order for issuance of notice(s) upon the JDS, yet its impugned order does not , hence, for reasons aforestated fall within the domain of judicial fallibility. Even though, the coinage “unless the Court otherwise directs” occurring at the end of the relevant proviso, does confer power upon the learned Executing Court to undermine the vigour of the mandate of the apposite proviso also hence give a discretion to it, to yet, comply with the mandate of sub rule (2) of Rule 66 to Order 21 of the CPC, nonetheless the petitioner has been unable to espouse with efficacy qua the relevant material laid therebefore making relevant bespeakings, for entailing the learned Executing Court to proceed to comply with the mandate of sub rule (2) to Rule 66 of Order 21 of the CPC, material whereof pronouncing upon the likelihood of fraud or irregularity occurring at the sale by public auction of the assets of JD, thereupon, on anvill thereof also the petition cannot succeed. 6. 6. For the foregoing reasons, there is no merit in the instant petition, consequently, the instant petition stands dismissed and the orders impugned hereat are affirmed and maintained. All pending applications also stand disposed of.