AMOLAK SINGH JAIN Vs. KRISHNA MISHRA

JUDGEMENT

(1.) Property bearing No. N-8, Kailash Colony, New Delhi was sold bypublic auction for Rs. l,02,000.00 on 28-11-1974. The auction took place in execution of a decree favouring Amolak Singh. The judgment-debtors preferred an application dated 22-12-1977 for setting aside of that sale under order 21 Rule 90 read with Sections 41 and 151 of the Code of Civil Procedure on the ground of material irregularities and fraud. The said application (E.A. 405/77) was listed before the court on 2-1-1978 but because neither of the parties to the matter were present it was ordered to be re-listed on 3-1-1978. On that day again there was no appearance and the application was, therefore, dismissed in default. The instant application, E.A. 49/78, has been preferred for restoration of E.A. 405/77.

(2.) Stated briefly, the judgment-debtors' case is that the application sought to be restored (E.A. 405/77) was filed on 23-12-1977 and copies thereof 'were served on the decree-holder and the auction-purchaser through registered post. Under the orders of the court dated 8-12-1977 the execution application was directed to be listed before the Deputy Registrar on 4-1-1978 for further directions and when the counsel for the parties appeared before the Deputy Registrar on that date he recorded an order reading. "Case file not received from the Registry. Re-notify for 18-1-78." On the last mentioned date the counsel for the judgment-debtors appeared before the Deputy Registrar and came to know that application No. 405/77 had been dismissed for default on 3-1-1978. He was all along under the impression that his application would be coming up before the Deputy Registrar on 4-1-1978 and that is why there was no appearance before the court on 2-1-1978 and 3-1-1978. It has been submitted that there was no deliberate default on the part of the judgment-debtors and there was sufficient cause in the circumstances for the dismissal being set aside. This application was opposed by the decree-holder as well as the auction purchaser. It was urged by them that the application did not lie and there was no ground otherwise for its being granted. In view of the pleas of the parties the following issues were framed in the case :-

(3.) The parties have confined their evidence to affidavits. From the side of the applicants there are affidavits of Hari Mohinder Misra and Shri S.L. Sahney and that of the parties opposing the applicantion of Smt. Bhagwati Devi auction-purchaser and Amolak Singh decree-holder. Issue No. 1.