SUDESH KUMAR Vs. ATAM PARKASH

JUDGEMENT

(1.) In what circumstances irregularity in the publishing and conducting of auction sale vitiates the sale is the short question for determination in this appeal against the order dated July 25, 1978 of M. S. Joshi J whereby sale of property bearing Municipal No. XV4392 (now) 5494 (old) Katra Rai Ji, Pahar Ganj, New Delhi was set aside.

(2.) Facts relevant for the purpose are that Kaushalya Devi and Keshav Dass purchased the property in question inequal shares for Rs. 30,000 on January 15, 1963 in a negotiated sale. Keshav Dass died on September 12. 1967 leaving behind Atam Parkash. Ved Parkash and Chetan Dass, sons; Sudesh Kumari and Promila Kumari, daughters, and Kaushalya, widow as heirs and legal representatives, On August 23, 1968, Kaushalya Devi instituted suit for partition and obtained preliminary decree on March 21. 1972-. Local Commissioner appointed to suggest mode of partition reported that partition by metes and bounds was not feasible. Accordingly, sale by public auction was ordered with a view to distributing the proceeds amongst the co-sharers. Sudesh Kumar, tenant in occupation of a part of the property gave the highest bid in the sum of Rs. 24,500 on February 20, 1973. Sudesh Kumari, who had been proceeded against ex parte on January 10, 1973 moved two applications 1.A. No. 684 of 1973 and I.A. 685 of 1973. The first application was directed against the order for proceeding ex parte. In the other application it was stated that there were grave irregularities and illegalities in the publishing and conducting of the sale but without entering into that controversy she was prepared to pay 5 per cent of the auction money for payment as solatium to the auction purchaser. The prayer was that 5 percent of the auction money be received and the sale he set aside.

(3.) T. P. S. Chawla J.. before whom both these applications came up, took the view that there was no sufficient ground for setting aside the ex parte order and dismissed I.A. 684 of 1973. He further took the view that the sale could be set aside under Order 21 Rule 89 (1) (a) Civil Procedure Code . if 5 per cent of the sale price was deposited for payment to the auction purchaser within 30 days and inasmuch .as no such deposit had been made, and it was not within the power of the Court to enlarge the time, the request made by Sudesh Kumari could not be entertained. The result was that I.A. 685 of 1973 also met the same fate, as a necessary sequel the sale was confirmed vide order dated May 7,1974.