UMA DATT Vs. R K SARDANA

JUDGEMENT

(1.) This appeal purporting to be filed under Section 47 of the Code of Civil Procedure, arises out of an order made in execution proceedings on objections raised by the judgment-debtor under O. 21, R. 90 of the said Code. It is obvious that by virtue of Section 104 read with O. 43, R. 1, Cl. (j) of the said Code, no second appeal would be competent. The auction purchaser is of course covered by Section 47 as amended, but Section 2 (2) of the Civil Procedure Code excludes from the definition of a "decree" any adjudication from which an appeal lies as an appeal from an order. The order of the executing Court was appealable as an "order" and, therefore, could not be considered as a "decree".

(2.) Faced with this difficulty, the learned counsel for the appellant desired this appeal to be treated as a revision. There being no objection to it and no injustice caused to anyone in treating this appeal as a revision under Section 115 of the Code, I am treating it as a revision.

(3.) Turning now to O. 21, R. 90 of the Code, it is obvious that no sale can be set aside on the ground of irregularity or fraud unless, upon facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The only grievance which Shri Bikramjit Nayar has ventilated before me is that the sale has been held before the expiry of 30 days from the date on which the copy of the proclamation was affixed on the court-house, of the Judge ordering the sale as contemplated by R. 68 of O. 21. The other two grievances are that the Court has violated the provisions of O. 21, R. 66 and of O. 21, R. 67 read with R. 54 of Civil Procedure Code. All these three grievances. If established of which I am far from convinced are, in my opinion, mere irregularities which, in order to enable the judgment-debtor to avoid the sale, must lead to substantial injury. Here, injury means loss which is wrongful. The substantial injury is stated to lie in the property having fetched lesser price than its market value. But assuming the price to be inadequate (and it may be remembered that at Court sales, normally, the property fetches lower than open market price), it must be shown to have been caused as a result of the alleged irregularity. It is well settled that the irregularity and the substantial injury must be correlated with each other as cause and effect, which is, quite clearly, not established in the present case. Injury cannot be inferred from proof of irregularity and mere inadequacy of price is, normally speaking, no ground by itself for setting aside the sale. In the absence of cogent material to the contrary, price fetched at Court sale may well be presumed to be adequate. Still another fatal objection to the present appellant's grievance is that according to the amendment made by the Punjab High Court to R. 90 of O. 21, Civil Procedure Code, no sale is to be set aside on any ground which the applicant could have put forward before the sale was conducted. It is impossible to argue that in the present case, the judgment-debtor (appellant in this Court and objector in the executing Court) could not have raised this objection before the sale was actually conducted. In any event, there is no such serious infirmity as would justify interference on revision, and indeed even interference on second appeal is somewhat difficult in view of Section 100, Civil Procedure Code. The appeal converted as a revision is, therefore, completely misconceived. Indeed, all these objection proceedings are, in my view, a futile attempt on the part of the judgment-debtor to postpone the evil day, and, if possible, to save the property which could be effectively done only if he had paid the amount at the proper time. Offer by the appellant in this Court now to pay the amount due is highly belated. This revision thus fails and is dismissed with costs.