SANJAY Vs. ANIL

JUDGEMENT

(1.) Leave granted.

(2.) We have heard learned counsel for the parties finally.

(3.) The facts in brief which need to be noted for the purpose of disposal of this appeal are that the appellant is a judgment debtor against whom decree dated 31st January, 2001 was passed by the Court of Civil Judge, Senior Division, Amravati, Maharashtra. This decree was passed in favour of respondent No. 2 who was the plaintiff in the said suit. Respondent No. 2 had filed the suit on the ground that the appellant had taken a loan of Rs.1,00,000/- from him which was not returned. The suit was filed for the recovery of Rs.1,16,520/-. Decree for the aforesaid amount was passed along with interest at the rate of 6 per cent per annum from the date of decision of the suit till the realization of the said amount. However, the appellant did not pay the money and, therefore, respondent Nos. 2 was forced to file execution petition in the Civil Court. In the said execution petition, property belonging to the appellant, i.e., agricultural land bearing gut No. 53/2/A at Mouza Nimghora admeasuring 40 R, was attached. This property was ultimately auctioned by the Court. Respondent No. 1 was one of the bidders whose bid was highest in the sum of Rs.5,50,000/- which was accepted by the Court. We may note at this stage that the aforesaid execution proceedings were ex-parte as the appellant did not appear. However, in July 2009, application for setting aside of the sale was filed. As the appellant had approached the Court after five years, he gave the explanation for this delay by contending that he was under mental depression and, therefore, could not maintain any contact with his counsel and moreover his counsel had not informed him about the progress of the case and, therefore, he was not having any knowledge of sale of his land by public auction and the issuance of sale certificate by the trial Court in favour of respondent No. 1. He also submitted that the actual value of the land was Rs.64,60,000/- which was sold at a partly sum of Rs.5,50,000/- and therefore, it was an unconscionable sale. The Trial Court vide orders dated 30.07.2009 dismissed the said application. Aggrieved thereby, the appellant filed Miscellaneous Civil Appeal before the court of District Judge, Amravati. This appeal was allowed by the District Judge vide orders dated 27.06.2012 primarily on the following grounds: