RAM PERSHAD Vs. RAM CHANDER

JUDGEMENT

(1.) The facts of this appeal are that the appellant Ram Prasad mortgaged his house with the respondent Ram Chander on May 14,1953, for a sum of Rs. 2400.00. The respondent filed - a suit for recovery of the said amount The suit, was decreed on Sept. 27, 1968. The final decree was passed on Oct. 15,1970. The decretal amount was about Rs. 6163.05. The decree-holder applied for execution on April, 15, 1971, for sale of mortgaged property. In the statement for proclamation under Order 21, Rule 66, C P. C., filed on May 7, 1971, the decree-holder mentioned that the property to be sold was a two-stored house with the area of 102 square yards, the market value of which was Rs. 7000.00 and the rental value was Rs. 80.00 per month. The judgment-debtor Ram Prasad received the notice and filed a reply on June 4, 1971. He contended that the number of the mortgaged property was different and that the area was also more than 102 sq. yards. He further mentioned that the value of the property was Rs. 20,000.07 to Rs. 25,000 00. Ram Chander decree-holder agreed that in the proclamation of sale the valuation suggested by Ram Prasad may be stated. Sale proclamations were issued thereafter, but in all of them the valuation that was mentioned was Rs. 7000.00 only Ram Prasad did not make any objection to this omission, Thereafter, the sale began on Nov. 1971, but no bids were made The gale was then held again on Jan. 28, 1972, when Ram Pasad judgment-debtor was present at take time of auction Right from, Nov. 19, 1971, until the last auction on Aug. 18, 1972, no proper his were received Ram Chunder decree-holder thereupon applied Oct. 9, 1972, for permission to bid under Order 21, Rule 72, C. P. C., alleging that Ram Prasad judgment-debtor is using his influence against the likely bidders to desist. The court permitted Ram Chander-decree-holder on Oct., 11, 1972, to a bid. The next auction the, place on March 2. There were no-bidders. The auction took place again on March 28, 1971. One Giain Singh gave a bid of Rs. 4,000.00 and one Sohan Singh give a bid of Rs. 6,000.00. Ram Chander then made the highest bid of Rs. 6,750,00 which Was accepted by the Government auctioneer Shri Dev Raj Advocate. the proceedings show that two witnesses Lal Chand and Mam Chand were present.

(2.) On April 27, 1973, the judgment debtor Ram Prasad filed an application that no proclamation for sale was pasted by the wall; no terms of sale were read out find explained; that the auction had been conducted illegally; and that the decree-holder conspired with bogus bidders and the property was supply at a very low price But, he did not care to appear and the objections were rejected on May 25, 1973. The sale was confirmed and the sale certificate was on Oct. 10, 1973, and registered on the snaffle day. Ram Chander decree holder applied on Oct. 15, 1973 for physical possession of be property which was in possession of the judgment debtor. On his application an order was passed on Oct. 17, 1973, for issue of warrant of possession. Ram Prasad judgment-debtor moved an applicant Nov. 22, 1973, for review of that order but alleged no fraud. He moved, however, another application on Feb. 1, 1974, under Order 21, Rule 89, C. P. C. He was allowed to amend that application. He submitted the amended application on Feb. 22, 1974, "by"which he prayed for setting aside of the sale on grounds of illegalities, irregularities and fraud under Order 21, Rule 90. The learned Sub Judge came to the conclusion that the repeated objections filed by the judgment-debtor amounted to abuse of the process of the court, the application was barred by limitation and dismissed the application with costs. The order of the learned Sub Judge is dated March 5, 1977. An appeal was filed. It was dismissed" by the Additional District Judge on Sept. 26, 1979. Hence, this second appeal.

(3.) It was contended before the learned Additional District Judge that the auction proceedings were fraudulent, fictitious and bogus; the appellant was not aware of the execution proceedings because no intimation given to him regarding the auction; no proclamation was made; the application alleged to have been made by him on April 27, 1973 was never made by him; it was rather moved by the respondent under forged signature of the appellant. The valuation of Rs. 7000.00 was very law. In fact, the disputed property was worth Rs.740,000.00. If he correct valuation had been given in the proclamation, the disputed property would have fetched' much more' than it did. Sub-Judge was wrong in holding that the judgment-debtor Was fully aware of the auction proceedings. The other side contended that the application under Order 21, Rule 90, is nothing but an abuse of the process of the gaunt. The appellant was not apply aware of the proceedings of auction by also had taken part before the court as well as before the-auctioneer. The learned Additional, District Judge held that an application under Order Rule 66, was moved before 4th Sub-Judicial on May, 7, 1921 notice application was personally served upon utlize appellant; the appellant even filed a reply and that for title the appellant was fully aware of the execution proceedings. He further observed that a close scrutiny of the memos of auction bids on Jan. 28, 1972 proved that the appellant was present at the time of auction. This is further supported by the fact that the judgment debtor moved an application for setting aside of the sale of April 27, 1973. This application was dismissed for default on May 25, 1973. The learned Additional District Judge rejected the contention that the signature of the appellant was forged. Ram Prasad appellant was represented before the court below in execution proceedings by an advocate Shri R.S. Babber (DHW 5) who admitted appellant's signatures of May 18, 1971, on the notice. He also admitted the bid memo of Jan. 28, 1972, bearing the signatures of Pam Prasad. He admitted signatures of the appellant on March 15, 1974, on the auction memo (DHW 5/2). The advocate further admitted that the reply to the application dated June 4, 1971, bore the signature of the appellant. The learned Additional District Judge therefore concluded that the appellant was fully aware of the execution proceedings pending against him.