Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1092 (HP)

Chet Ram v. Krishan Singh

2019-08-05

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. 1. Despite service, none has come present on behalf of the respondent as such, he is proceeded against ex-parte. 2. Instant petition filed under Art. 227 of the Constitution of India, is directed against order dated 10.9.2018 passed by learned Civil Judge (Senior Division), Kandaghat, District Solan, Himachal Pradesh in Case No. 5-K/10 of 2015, whereby an execution petition filed by the petitioner/plaintiff/Decree Holder (hereinafter ‘plaintiff’) has been disposed as fully satisfied. 3. For having a bird's eye view, facts, as emerge from the record are that the plaintiff filed a suit for recovery of Rs. 6,80,000/- (Rs. 5.00 Lakh Principal amount and Rs. 1,80,000/- interest from 1.8.2012 to 31.7.2015) against the respondent/defendant/judgment debtor (hereinafter ‘defendant’). Plaintiff averred that the defendant Krishan Singh being his Attorney, sold his property for a valuable consideration of Rs. 16,20,000/- but thereafter, he despite repeated requests, failed to pay the sale consideration realized by him, after selling the suit property belonging to the plaintiff. 4. Defendant, did not file any written statement and subsequently, by way of a compromise i.e. Annexure P-2, accepted his liability and issued three cheques amounting to Rs. 5.00 Lakh each, in favour of the plaintiff. However, the fact remains that such cheques subsequently came to be dishonoured on account of insufficient funds. Plaintiff filed three separate complaints under S.138 of the Negotiable Instruments Act, against the defendant in the court of learned Judicial Magistrate 1st Class, Kandaghat, which are still pending adjudication. 5. During pendency of the suit referred to herein above, plaintiff and defendant filed a joint application for passing of a compromise decree on the basis of Annexure P-2, as referred to herein above, stating therein that the defendant has no objection in case, suit of the plaintiff is decreed, as prayed for and charge to the tune of decreetal amount is created on his property. On the basis of the aforesaid averments contained in the application, trial court below vide order dated 30.9.2015 (Annexure P-3), decreed the suit of the plaintiff, as compromised and held plaintiff entitled for recovery of Rs. 6,80,000/-. After passing of aforesaid judgment and decree, plaintiff filed an execution petition under Order XXI Rule 11 CPC, wherein defendant filed objections. Defendant averred in the objections that he intended to make the payment as per compromise decree passed by the trial Court and he has already paid Rs. 6,80,000/-. After passing of aforesaid judgment and decree, plaintiff filed an execution petition under Order XXI Rule 11 CPC, wherein defendant filed objections. Defendant averred in the objections that he intended to make the payment as per compromise decree passed by the trial Court and he has already paid Rs. 1,40,000/- in the court. Besides above, defendant also claimed that he has paid Rs. 1.00 Lakh earlier. However, the fact remains that the learned executing Court dismissed the objections and ordered for issuance of warrant of attachment of the suit property. Since despite there being warrant of sale of the property in question, no person came forward to purchase the same, plaintiff filed an application under Order 21 Rule 11 CPC, seeking permission to participate in the auction of the property and learned executing Court, vide order dated 21.11.2017, allowed the application and permitted the plaintiff to purchase the property. 6. On 10.9.2018, learned executing Court after having perused the report submitted by Tehsildar, Kandaghat, wherein it was observed that "the sale of property of the judgment debtor was made on 2.6.2018, after intimation to both the parties and Decree Holder Chet Ram in the present case purchased the suit property with the permission of the Court at the rate of Rs. 2. lacs qua which Rapat No. 305 has been made in rojnamcha by Halka Patwari" disposed of the execution petition having been filed by the plaintiff, as being fully satisfied. 7. Being aggrieved and dissatisfied with aforesaid order dated 10.9.2018, plaintiff has approached this Court in the instant proceedings. Grouse of the plaintiff, in nutshell, is that as per order dated 28.4.2016 (Annexure P-6) entire property i.e. 6 Bigha and 17 Biswas of land was required to be put to auction but, in the case at hand, Tehsildar, of his own, without there being any authority, auctioned only 5 Biswa of land, causing irreparable loss and injury to the plaintiff, who is/was otherwise permitted by the court to participate in the auction proceedings. 8. Having carefully perused the record, especially the warrant of attachment, this court is convinced and satisfied that the entire suit property was ordered to be put to auction, but the Tehsildar concerned did not have any authority, whatsoever, to segregate the property and thereafter put only 5 Biswa of land to auction. 8. Having carefully perused the record, especially the warrant of attachment, this court is convinced and satisfied that the entire suit property was ordered to be put to auction, but the Tehsildar concerned did not have any authority, whatsoever, to segregate the property and thereafter put only 5 Biswa of land to auction. Tehsildar concerned, could have, in no manner, gone beyond the decree sought to be executed in the execution proceedings having been initiated by the plaintiff. 9. Consequently, in view of above, present petition is allowed. Order dated 10.9.2018 passed by learned Civil Judge (Senior Division), Kandaghat, Solan, Himachal Pradesh in Case No. 5-K/10 of 2015 is set aside. Matter is remanded back to learned executing Court to order fresh sale of attached property, specifically asking the revenue authorities to put entire land to auction. Sale dated 2.6.2018, is quashed and set aside. Learned counsel for the plaintiff undertakes to make his client appear before learned executing Court on 19.8.2019, enabling it to proceed further in terms of instant order. Needless to say, since the court below has already permitted the plaintiff to participate in the auction proceedings, he may not be compelled to seek fresh permission for the purpose. 10. Petition stands disposed of in the aforesaid terms, alongwith pending applications, if any.