AMOLAK SINGH JAIN Vs. SATYAWATI

JUDGEMENT

(1.) These are applications to set aside sale of 51/100th share of property at No. 1, Purana Quila Road, New Delhi auctioned on 26th September, 1977 for Rs. 4,55,000 in favour of Delhi Sikh Gurdwara Management Committee, Delhi. On 24th April 1973, a money decree for Rs. one lac with interest at 12 per cent per annum from the date of payment of this amount i.e. 25th June, 1962 till the date of decree and future interest at 6 per cent per annum from the date of decree till realisation and costs of suit Rs. 4,101.95 p. was passed in suit No. 99 of 1966. Defendant No. 1 was to pay Rupees 40,000 with interest, defendants 4A & 4B and defendants 1 to 3, 6 to 12 as legal representatives of defendant Smt. Kirpa Devi were to pay a sum of Rupees 20,000 with interest from the property of the deceased, and defendants 8 and 9 as well as defendants 6 to 9 as legal representatives of defendant No. 5 deceased were to pay a sum of Rs. 40,000 with interest to the plaintiff. On 2nd August, 1973 execution No. 63 of 1973 was filed for the recovery of the decretal amount by attachment and sale of the said property at 1, Purana Quila Road, New Delhi, by attachment under Order 21, Rule 46 of the Code of Civil Procedure, an amount of Rs. 32,000 due to Rani Kirpa Devi lying in deposit with the Managing Committee of Guru Harkishan Public School New Delhi and also by attachment of Rs. 3,000 per month out of rent falling due to the judgment-debtors on the first of every month from the managing committee of Guru Harkishan Public School. By order dated 23rd August, 1973 the Managing Committee of said School was prohibited from making payment of the amount due to late Rani Kirpa Devi or to any of her legal representatives. The Managing Committee of the said School accordingly deposited Rs. 35,434.81 and the same was ordered to be paid to the decree-holder as per Order dated 5th Februrary, 1974. This amount is stated to have been paid to the decree-holder. Judgment-debtors by order dated 5th February, 1974 were restained from recovering rent from the School and the Managing Committee of the said School was directed to deposit Rs. 2,700 out of rent becoming due to judgment-debtors every month in this court.

(2.) The share of the judgment-debtors in the property was stated to be 51/100. Accordingly by order dated 25th September, 1975, 51/100th share in the said property was ordered to be attached. The order prohibiting the judgment-debtors from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge was not served for a sufficiently long time and therefore by order dated 4th January, 1977 the said prohibitory order was directed to be served by publication which was published in the daily issue of 'Indian Express' dated 29th April, 1977. The judgment-debtors by this notice were also directed to appear in court on 9th May, 1977 at 10-30 A. M. Bawa S. C. Singh, Advocate was appearing in these proceedings as counsel for the judgment-debtors. S. Mohd. Anis, Advocate appeared for counsel for the judgment-debtors on 9th May, 1977 and judgment-debtors were granted time to file objections till 19th July, 1977 on which date the counsel for judgment- debtors again prayed for a week's time to file objections, which was granted but objections were not filed. On 19th July, 1977 counsel for the decree-holder in the presence of counsel for the judgment-debtors also filed an application (EA 213/77) under Order 21, Rule 66 of the Code of Civil Procedure which was ordered to be placed on 29th July for appropriate orders. On 29th July, 1977 the execution case was directed to be placed before the Court on 14th August, 1977 for sale order. On 14th August, 1977 in the presence of counsel for the decree-holder and Mr. Ashok Aggarwal, Advocate for counsel for the judgment-debtors, the Court directed issue of warrant of sale as well as proclamation of sale. The sale was fixed for 26th September, 1977. The decree-holder filed an application (EA 253/77) and on 1.9.1977 in the presence of counsel for the decree-holder and judgment-debtors it was ordered that the proclamation of sale be affixed at the Court house and at the spot by 7th September, 1977. The proclamation of sale was accordingly issued which was affixed at the court house and at the spot and the property was put to sale on 26th September, 1977. The property was purchased by Delhi Sikh Gurdwara Managing Committee Delhi for Rs. 4,55,000. The sale held on 26th September, 1977 was made absolute in the name of the auction purchaser and the sale certificate was ordered to be issued in favour of the purchaser by order dated 2nd November, 1977. It was observed that objections to the auction were not filed by any of the parties within the prescribed period, and consequently the sale was made absolute and sale certificate was ordered to be issued. On 16th November, 1977 judgment-debtors Nos. 1, 2, 5 (a) to 5 (d) and 6 to 9, filed application (EA 365/77) praying that proceedings from the date of filing of application under Order 21 R. 66 of the Code of Civil Procedure be ignored and the alleged sale dated 26th September, 1977 be held to be nullity, on the ground that no notice of application under Order 21, Rule 66 of the Code of Civil Procedure was ever ordered to be issued to any of the judgment-debtors, that terms of proclamation were not settled, that no opportunity was given to the judgment-debtors to file objections against sale, that on 4th August, 1977 when property was directed to be sold, Mr. Ashok Agarwal, Advocate who appeared for counsel for judgment-debtors, was never appointed as an Advocate by any of the judgment-debtors that there was no beat of drums at site and that hand-bills or posters for the sale were not issued, that there was no pasting of any notice on the property or the court house that sale is in fraud of Court and judgment-debtors, that property has been sold for Rs. 4,55,000 while it was worth more than twenty lacs. The decree holder in his reply pleads that the objections having been filed more than 30 days after the sale are barred by time, that application under Order 21, Rule 66 of the Code of Civil Procedure was made on 19th July, 1977 in the presence of counsel for judgment-debtors and thus they had valid notice of the application, and all orders on this application were passed in the presence of counsel for judgment-debtors without any objection, that the various dates for affixation of proclamation of sale at the spot and the court house as well as the date of auction were fixed in the presence of counsel for judgment-debtors, that sale took place on 26th September, 1977 and on 29th September, 1977 time was allowed to judgment-debtors to file objections but objections were not filed and therefore sale was confirmed on 2nd November, 1977, that hand-bills were issued and there was advertisement by beat of drum, that Rs. 4,55,000 price of 51/100th share of property was reasonable and proper as the judgment- debtors were not in possession of the property, and that the sale was not liable to be set aside. Judgment-debtors also filed an application dated 16th January, 1978 (EA 30/78) praying that the issue of sale certificate be stayed till the decision of the previous application (EA 365/77). The prayer for stay of proceedings was declined by order dated 17th January, 1978. The following preliminary issues were framed on 12th September, 1978 and the matter was adjourned for arguments :

(3.) On 9th October, 1978 arguments were heard in part on the preliminary issues and it was discovered that Article 127 of the Limitation Act, 1963 prescribing 30 days period from the date of sale to set aside sale in execution of decree was amended by Code of Civil Procedure (Amendment) Act 104 of 1976 and for 30 days, 60 days was prescribed to set aside such a sale. Prima facie, it appeared that petition dated 16th November, 1977 (EA 365/ 77) was within time and it was not considered necessary to decide the preliminary issues, and the following additional issues were framed on 9th October , 1978 :