DURGA PRASAD Vs. BRIJ BEHARI LAL

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal against the dismissal of a petition filed by him under Order XXI, Rule 90 of the Code. The decree-holders had obtained a money decree for Rupees 16,800/- along with interest at the rate of six per cent per annum against Durga Prasad the judgment-debtor.

(2.) ON 5-5-1975 the decree-holders filed an execution application and on this application the court on 14- 5-1975 issued notice under Order XXI, Rule 54 of the Code fixing 19-7-1975. ON 19-7-1975 it was found that the notice was not served and thereafter on 19-7-1975 the court directed the decree-holders to take steps within seven days to serve notice under Order XXI, Rule 66 of the Code. ON 1-10-1975 the decree-holders having taken the steps the notice was ordered to be issued for 6-12-1975. ON 6-12-1975 the court found that the notice had been duly served: No objection having been filed the court directed that the steps be taken to sell the property by auction. It was then discovered that encumbrances had not been mentioned in the notice served on the judgment-debtor and so the court directed a fresh notice under Order XXI, Rule 66 of the Code to be served on the judgment-debtor who was directed to file his objection by 27-2-1976. The court on that date fixed 1-3-1976 for settlement of the terms of proclamation for sale. Before the date fixed on 27-2-1976 an objection paper No. 22-C was filed by the judgment-debtor in which the judgment-debtor stated that there was no encumbrance on the property. ON 1-3-1976 the court held the notice to be sufficiently served on the judgment-debtor. The decree- holders were required to take steps in execution for getting the auction sale done. ON the judgment- debtor's application 22-C the decree-holders were given time till 13-3-1976 which was the date fixed. The case was adjourned to 25-3-1976 and from that date to 20-4-1976. ON 20-4-1976 the court directed that an amendment be made in the sale proclamation and reference to the encumbrance on the property be deleted. The order is in the handwriting of the court on 22-C which runs as under :- "no objection filed. Hence allowed. Necessary amendment be made in the sale proclamation. Issue a writ of sale by auction to Amin fixing 25-9-1976 for auction and 1-6-76 for its return. Put up on 1-6-76 for further orders. Issue sale proclamation accordingly. "

(3.) THE matter was taken up on 27-1-1978 on which date the court directed that the warrant of sale should be issued fixing 6-3-1978 as the date of auction sale. On 1-3-1978 an application was moved by Madan Mohan Kalani stating that Rs. 5,000/- towards principal and Rs. 11,500/- towards interest in all making Rs. 16,500 was due to him under the mortgage of the house proposed to be sold by the judgment-debtor. It was prayed that at the time of auction sale this fact should be mentioned. THE court thereupon passed an order on 3-3-1978 in the following words :- "the sale may be held subject to mortgage money together with interest. "