GANGA PRASAD Vs. II ADDITIONAL DISTRICT JUDGE SULTANPUR

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) In short compass, facts which lead to the filing of the instant writ petition are that one Mohd. Mateen filed a Regular Suit No. 227 of 1970 for recovery of Rs. 2,137.80 based on pronote and during pendency of the suit, the plaintiff moved an application for attachment of the property before judgment, which was allowed on 27.7.1970 and the Trial Court directed for attachment of residential house and shop of the petitioner. Later on, the aforesaid Regular Suit was decreed by the Trial Court on 12.1.1973. As the decree was not satisfied, Mohd. Mateen, the decree holder moved an application for execution of the above decree for a sum of Rs. 4297/28p against the petitioner-judgment debtor, which was registered as Execution Case No. 83 of 1973 on which notice was issued to the judgment debtor on 4.1.1974. On 27.7.1974, a sale proclamation was issued for recovery of 4311/30p fixing the date of auction sale on 24.9.1974 through public auction. Opposite Party no.3-Chhotey Lal purchased the aforesaid property through public auction held on 24.9.1974. The aforesaid sale was confirmed on 30.11.1974 in accordance with Order 21 Rule 92 of the Code of Civil Procedure in Execution Case No. 83 of 1973; Mohd. Mateen vs. Ganga Prasad decided on 6.12.1980 and a sale certificate was also prepared.

(3.) It is to be noted that opposite party no.3-Chhotey Lal moved an application for delivery of possession, which was registered as Misc. Case No. 128 of 1980.Petitioner filed objections stating therein that the petitioner is entitled in law for a fair value of the property auctioned. It was also indicated that the property was not identifiable and moreover, the amount for which execution was filed was only Rs. 2,137/- and it should have been realized even selling a portion of the house and not the entire house. It has further been urged that there are serious irregularities in the procedure for auction sale and even the auction sale was conducted within 30 days and there was no statutory time gap of at least 30 days provided under Order 21 Rule 68 of the Code of Civil Procedure. Apart from the above, it has been urged that no prior notice in any manner was given to or served on the judgment-debtor before the process or action of drawing up of sale proclamation was initiated or taken up and as a result thereof no value or estimation of the value of the property could be given by the judgment-debtor and the property was auctioned on a very low and throw away price.