RAM MAURYA Vs. KAILASH NATH

JUDGEMENT

(1.) The appellant herein is the judgment-debtor. The plaintiff-respondent No. 1 is the decree holder. A suit on the basis of a mortgage was decreed by the trial Court. The decree holder put the decree in execution. In the execution proceeding the property in dispute was sought to be sold through an auction. Respondent Nos. 2 to 7 are auction purchasers of the house sold in the said execution proceedings. Under such circumstances, the judgment-debtor and respondent No. 8 filed objections under Order 21 Rule 90, C.P.C. for setting aside the auction sale on the ground that there was material irregularity and fraud in conducting the auction sale. The said objections were rejected by the Executing Court on the ground that the judgment-debtor had not furnished adequate materials to substantiate the allegations of material irregularity and fraud. The matter was taken to the High Court by way of an appeal which was also dismissed. It is in this way the appellant has come to this Court.

(2.) Learned counsel appearing for the appellant contended that since there was material irregularity and fraud in conducting the auction sale of the property in dispute, it was incumbent upon the Executing Court to have set aside the auction sale. The Ex-ecuting Court in its order had held that the judgment-debtor/objector did not furnish adcquate materials to substantiate the allegations of frand and material irregularity. Even if we assume here for the sake of argument that there was material irregularity in conducting the sale of the property, we do not find any pleading by the objectors in their objections that on account of such material irregularity they were put to substantial injury. In the absence of such pleading, it was not open to the Executing Court to set aside the auction. Learned counsel then urged that there was an injunction by the Civil Court restraining the Executing Court from confirming the sale and as such the confirmation of sale of house was totally erroneous. It may be noticed here that the suit was filed at the instance of other co-sharers of the judgment-debtor and not by the judgment-debtor himself. It appears that after the objection of the judgment-debtor was decided by the Executing Court the sale was confirmed. We are of the opinion that this kind of objection is not available at the instance of the judgment-debtor. We, therefore, reject this contention.

(3.) Before the judgment was concluded, learned counsel appearing for respondent Nos. 2 to 7/auction purchasers fairly stated that the auction purchasers have no objection if the judgment-debtor is permitted to retain the small kachha house as mentioned in the order of the Executing Court which was also the subject matter of auction sale. In view of this statement, the kachha house mentioned in the order of the Executing Court may be retained by the judgment-debtor. We are also informed that the auction purchasers have already taken the possession of the entire property excepting the kachha house as mentioned in the order of the Executing Court. We, therefore, direct the Executing Court to make necessary amendment to the confirmation of sale of property in dispute by excluding the kachha portion of the house. For the foregoing reasons, we do not find any infirmity in the execution proceedings and sale of property in favour of auction purchasers. The appeal is accordingly dismissed. There shall be no order as to costs.