RAJIV SUD Vs. RAM CHAND RALLAN

JUDGEMENT

(1.) BY way of instant petition under Article 227 of the Constitution of india, the petitioner has assailed an order dated 27th April 2007 passed by learned Commercial Civil Judge in an execution case No. 182/1972.

(2.) BRIEF facts relevant for the purpose of deciding the instant petition are that in an execution of a decree dated 25th August 1971, the decree holder got immovable property of JD (respondent No. 2 herein) attached and prayed for sale of immovable property. Despite the attachment and proclamation of sale, when no amount was paid by the JD, the property measuring 2016 sq. yards forming part of Khasra No. 739, Khata No. 34/1293, Village " Tuglakabad, New Delhi was put to auction through the Court auctioneer in 1979. The said property was purchased by the auction purchaser (petitioner herein) for a sum of Rs. 7200/- on 2nd March 1979. The bid money was deposited by the auction purchaser and he applied for confirmation of sale. On 29th March, 1979, objections under Order 21 Rule 89 and 90 of CPC read with Section 47 were filed by one Ms. Shakuntala devi alleging that JD had sold a part of the auctioned land, measuring 420 sq. yards, to her on 18th December 1973 and the possession of the land was also delivered to her. She claimed that the land measuring 420 sq. yards could not have been sold in the public auction. She wanted cancellation of the auction sale to that extent. The objections filed by Ms. Shakuntala Devi were dismissed in default on 16th March 1983, JD (respondent No. 2), however, deposited the decreetal amount in the Court on 1st March 1985 and also a solitium of Rs. 325/-on 17th May 1985 and applied for setting aside sale. The executing Court passed an order dated 12th July 1985 holding that since JD has paid the decreetal amount to the decree holder, so the amount deposited by the auction purchaser be refunded and the sale of auction property was revoked. Against this order dated 12th July, 1985, the auction purchaser preferred a Civil Revision No. 1064 of 1985 before this Court. This Court, vide order dated 15th July 1986 allowed the said revision petition in favour of the auction purchaser and set aside the order dated 12th July 1985 of the executing court and remanded the matter back to the executing court to decide the objections filed by the JD on merits considering the provisions of Order 21 Rules 89 and 90. After the matter was remanded back, the learned Commercial Judge dismissed the objections filed by the judgment debtor on 9th October 2001 held that the auction of the property was in accordance with law. He further observed that the judgment debtor failed to deposit the decreetal amount within the period of 60 days as provided under order 21 Rule 89 and, therefore, challenge to the auction was not maintainable. The Judgment Debtor preferred an appeal against this order of learned executing court being RC No. 20 of 2005 before the Senior Civil Judge. This appeal was dismissed by the Sr. Civil Judge on 28th September 2005.

(3.) ON 4th October 2004 one Alok Gupta (Respondent No. 3) filed an application under Section 47 read with Section 151 of CPC before the Commercial judge contended that out of the auction property, a part of property measuring 420 sq. yards was sold by Shri Ram Chand Rallan to smt. Shakuntala Devi on 18th december 1973 and the said Shakuntala Devi being in possession and owner, sold the same for consideration to him (respondent No. 3) on 21. 12. 1992 through documents like Will, Agreement to Sell, affidavit, GPA etc. He pleaded that since the JD had already paid the decreetal amount to the decree holder, the decree stood satisfied and in support of his contention, he relied upon the decision of the Supreme Court in C. H. Gowda v. M. R. Trumala, (2004) 1 SCC 453. This application was resisted by the auction purchaser who took the stand that the applicant (respondent No. 3) had no locus standie to move such an application. He was neither a party to the suit nor the representative of any of the party. No deposit had been made within the period of 60 days from the order of sale. No application under Order Rule 89 was made within a period of 60 days by him and the order dated 16th September 1983 whereby objections of Smt. Shakuntala Devi were dismissed had become final. It was also submitted that in terms of the order dated 15th July 1986 passed by this Court in Civil Revision no. 1064 of 1985, the sale was to be confirmed on dismissal of objections of the judgment Debtor. Since the objections of JD had been dismissed, the sale has to be confirmed and the application could not be entertained. However, the commercial Civil Judge vide the impugned order allowed the application of Mr. Alok Gupta under Section 47 and recorded the satisfaction of the decree, relying on C. H. Gowda's case (supra ). The petitioner has preferred this petition assailing the order.