TRILOKI Vs. IVTH A D J

JUDGEMENT

(1.) Heard Sri Sankatha Rai, learned counsel for the petitioners and Sri Shashi Nandan, senior advocate, assisted by Sr. B.D. Sharma, learned counsel appearing for contesting respondent No. 4.

(2.) By this writ petition, the petitioners have prayed for quashing the order dated 25th March. 1987, passed by 4th Additional District Judge, Muzaffarnagar, allowing Revision No. 136 of 1986, Girwar v. Triloki and Ors., and order of the same date allowing Civil Appeal No. 141 of 1986, Girwar v. Triloki and Ors., passed by 4th Additional District Judge, Muzaffarnagar. Prayer has also been made to quash auction sale and to quash the order dated 10th October, 1986, passed by 1st Additional Civil Judge, Muzaffarnagar dismissing the objection filed by the petitioners under Order XXI, Rule 90 of Code of Civil Procedure (hereinafter referred to as the Code) as withdrawn.

(3.) Brief facts giving rise to this writ petition are : respondent No. 3, Simaru (who died during pendency of the writ petition and is represented by legal heirs) obtained a decree of Rs. 13,000 + 6% interest per annum dated 30th January, 1980 against Kalu, father of petitioners. Simaru filed an application for execution of decree on which Execution Case No. 56 of 1980 was registered. The executing court directed sale of the agricultural land belonging to the petitioners by Commissioner. Proclamation was made for auction sale fixing 21st January, 1986 at 12.00 noon. Commissioner submitted report dated 3rd February, 1986 stating that auction sale was conducted on the spot and highest bid of Rs. 32,000 has been given by respondent No. 4, Girwar. The executing court on 4th February, 1986 passed an order accepting the bid. An application under Order XXI, Rule 90 of the Code was filed by the petitioners praying for setting aside the sale dated 21st January, 1986. Objection was filed by the decree holder as well as the auction purchaser to the application under Order XXI, Rule 90 of the Code filed by the petitioners. Petitioners moved an application on 3rd October, 1986 praying that they may be permitted to deposit Rs. 5,000 for payment to the decree holder. Another application was moved by the petitioners on 7th October, 1986 praying for depositing Rs. 10,000. An order was passed on 10th October, 1986 permitting the petitioners to deposit an amount of Rs. 10,000. The executing court also directed the petitioners to deposit balance amount by 13th October, 1986. Applications were also filed by the decree holder and auction purchaser for confirmation of the sale and issue of sale certificate. The executing court vide order dated 10th October, 1986 rejected the applications filed by the auction purchaser and decree holder for confirmation of sale and issuance of sale certificate and directed that the auction purchaser be returned the amount of auction and auction purchaser be paid 5% by way of compensation. The executing court held that decree holder is entitled for the amount deposited under the decree. The auction dated 21st January, 1986 was set aside by the executing court. Against the order dated 10th October, 1986 by which the executing court has allowed time to the judgment debtor for depositing the amount was challenged by auction purchaser by filing Revision No. 136 of 1986. Civil Appeal No. 141 of 1986 was also filed by auction purchaser challenging the order dated 18th October, 1986 by which the executing court rejected the application of the auction purchaser for confirmation of the sale. Revision filed by the auction purchaser challenging the order dated 10th October, 1986 has been allowed by order dated 25th March, 1987 setting aside the order dated 10th October, 1986. By another order of the same date Civil Appeal No. 141 of 1986 filed by auction purchaser against the order dated 18th October, 1986 has also been allowed. The order rejecting the application filed by the auction purchaser under Order XXI, Rule 92 of C.P.C. passed by the executing court has been set aside and the application of the auction purchaser for confirmation of auction sale has been allowed by 4th Additional District Judge, Muzaffarnagar. This writ petition has been filed challenging the aforesaid two orders passed by 4th Additional District Judge, Muzaffarnagar by the judgment debtor. By amendment, petitioners have also prayed for setting aside the order dated 10th October, 1986 by which application filed by the petitioners under Order XXI, Rule 90 of the Code was dismissed as withdrawn. The petitioners have also prayed that auction sale dated 21st January, 1986 be set aside.