FIRM BINDESHRI PRASAD BHOLA NATH Vs. RAJA RAM

JUDGEMENT

(1.) The above appeal is directed against an order dated 7-7-1959 by which the learned Civil Judge, Mirzapur dismissed the appellants' objection under Order XXI, Rule 90 C. P. C. The first respondent is the decree-holder of a decree for money which he executed by sale of the house, the subject matter of controversy in this appeal. The same was sold on 9/1/1957 and purchased by Ambika Prasad, respondent No. 2, for a price of Rs. 12,000/-.

(2.) The facts about which there is no dispute are that the sale proclamation under Order XXI, Rule 66 C. P. C. was issued on 13-11-1956. Sub-rule (2) of Rule 66 requires that the sale proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor. The service of the notice on the judgment-debtor was completed in this case by publication in a paper by the name 'Mazaq'. The judgment-debtor did not appear on the date appointed for the drawing up of the sale proclamation which under the circumstances was prepared at his back. In this document the estimated value of the property to be sold was not entered.

(3.) The date originally appointed for sale was 6-1-1957. The sale proclamation also was issued for this particular date. It appeared that later it transpired that 6-1-1957 happened to be a Sunday. On 7-1-1957 after the appointed date was over the Amin who was the Sale Officer reported to the learned Civil Judge that the sale could not be held owing to 6-1-1957 being a Sunday and requested that some other date might be fixed. On the following date, that is, on 8-1-1957 the learned Civil Judge made an order fixing 9-1-1957 as the date on which the sale will be held. Admittedly no fresh sale proclamation or other notice was issued for this date either to the judgment-debtor or other persons concerned. Nevertheless, the property was put up for auction on this date and ultimately knocked down in favour of respondent No. 2 for the price of Rs. 12,000/-.