NAZIR Vs. BUNDU KHAN

JUDGEMENT

(1.) One Aakil Khan filed Original Suit No. 222/78 against Hari Dutt Sharma, Nanak and Dal Chand for realization of money. A decree for an amount of Rs. 50,00/- including the expenses was passed against the judgment-debtor. An execution application for execution of the decree was filed before the Civil Judge (J.D.) for effecting the recovery of the decreetal amount. Having failed to pay the amount, the property situated in Khasra No. 46 was sought to be auctioned to realise the decreetal amount. Auction proceedings were culminated and one Nazir Ahmad Khan was declared successful bidder. Report was prepared by the Amin after conducting the auction proceedings. The amount was deposited by one Nazir Ahmad Khan. Proceedings for confirmation of the auction sale were under process. Thereafter an application was filed by the respondents seeking cancellation of the auction proceedings and also confirmation of the auction sale. Objection taken by the objector was that the land in question which was sought to be auctioned was situated on plot No. 46 whereas the land which is sought to be sold in auction is on plot No. 45 which belongs to the respondents objector. It is further contended that no sale-deed was executed by the objector in favour of the judgment-debtor in Civil Suit No. 222/1978 filed by Aakil Khan. The said judgment-debtors are respondent Nos. 2, 3 and 4 in the present writ petition. There is no proof that the property situated on plot No. 45 was ever sold by the objector respondent to respondents No. 2 and 3. There is no mutation nor any entry in the Khatauni or Khasra in the name of respondent Nos. 2, 3 and 4. It is also contended that the possession of the property continues to remain with the objector even till date as such any sale executed in favour of the respondents No. 2 to 4 has never materialised as handing over of the possession is one of the essential features of the same. Objections filed by the objector respondents were accepted by the learned Civil Judge (JD) and additional District Judge/Appellate Authority. It is in these circumstances, the present writ petition has been filed by the auction purchaser. Petitioner claims that he is bona fide purchaser of the land in question. He has deposited the auction money. His claim is that the land in question was sold by the respondents objector in favour of respondents No. 2 and 3 situated in plot No. 46 which now has been changed to plot No. 45 after the conclusion of the consolidation proceeding. Even though the property in question was in Khasra No. 46 but the same stands changed to plot No. 45. The sale of the property was affirmed only after necessary permission was obtained from the Settlement Officer Consolidation. He further contends that after the execution of the sale-deed respondent No. 1 in this behalf handed over the possession of the land in dispute to the respondent Nos. 2 and 3 which is clearly reflected in the sale-deed dated 10.2.1975. Thus, it is undisputed fact that respondent Nos. 2 and 3 became owner of the land in dispute. On the failure of the respondent Nos. 2, 3 and 4 to pay the decreetal amount to Aakil Khan, execution proceedings were filed for realization of the decreetal amount from the judgment-debtors. Execution of the decree in Original Suit No. 222 belonging to the respondents No. 2 and 3 was publicly auctioned on 10.5.1984 and in the said auction petitioner's bid was highest and the same was accepted subject to the confirmation by this Court. He has challenged the order of the Courts below on the following grounds:

(2.) Heard learned Counsel for the parties and perused the material on record. Admitted case of the petitioner is that the land which he has purchased in auction is situated in Plot No. 46 whereas the property which is sought to be subject-matter of auction proceedings is situated in plot No. 45. It is also admitted that after the consolidation proceedings were culminated the plot No. 46 was changed to plot No. 45. Execution application filed in the year 1982 relates to the plot No. 46 which is owned by different persons. Even though the decree holder was aware that the consolidation proceedings had been initiated and culminated in the year 1970 and plot No. 46 was changed to plot No. 45, but despite this he continued to seek execution of the property situated in plot No. 46. Both the Courts have clearly mentioned that the said property owned by the respondent No. 1 is not situated in Khasra No. 46. Further contention raised by the petitioner is that the sale-deed was executed by the respondent No. 1 in favour of the respondents No. 2 and 3. After obtaining proper permission from the Consolidation Officer the possession of the property was handed over to the purchaser. However, petitioner in his written statement recorded before the Courts below had admitted that the respondent No. 1 continues to remain in possession of the property till date. It is also admitted that there is no entry recorded in favour of the respondents No. 2 and 3 in the Khatauni in respect of the sale-deed which is said to have been executed by respondent Nos. 1 with respondent Nos. 2 and 3. Both the facts lead to the conclusion that the possession of the land in question claims to have been transferred by respondent No. 1 to respondent Nos. 2 and 3 continues to remain with him thereby nullifying the version of the petitioner that the sale-deed was executed. In absence of any entry in the revenue record in favour of the respondent Nos. 2 and 3 their possession as such is under shadow. There is no clinching evidence to suggest that the property was ever sold by the respondent No. 1 as indicated by the learned Trial Court.

(3.) For setting aside the auction of sale the statute provides that normally an application under Order XXI, Rule 89 or 90 or under section 47, C.P.C. need to be filed within the period of limitation. This procedure need not to be insisted upon while dealing with such application which are fraught with illegality. The Court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting Court sales even if the application is not filed within time prescribed. In this case auction sale has taken place in respect of the property which is situated in Khasra No. 45 belonging to the respondent No. 1 and admittedly it does not belong to the judgment-debtor. Plea of limitation cannot sustain. I am fortified with the judgment rendered by Hon'ble Apex Court in the case of Nani Copal Paul v. T. Prasad Singh and others,1995 AIR(SC) 971 wherein the Hon'ble Apex Court has held as under: