SHIV CHARAN Vs. ADDL DISTRICT JUDGE RAMPUR

JUDGEMENT

(1.) S. U. Khan, J. At the time of arguments, no one appeared on behalf of the contesting respondents, hence only the arguments of the learned Counsel for the petitioner were heard.

(2.) RESPONDENT No. 3 Asa Ram since deceased and survived by legal representatives instituted a suit for recovery of Rs. 5,000/- against respondent No. 4, Shiv Nandan being O. S. No. 58 of 1975. Agricultural land of defendant was attached before judgment on 27-7-1975 by the Trial Court. In spite of the attachment, the defendant sold half of the attached property to the petitioner and remaining half to his wife through registered sale-deed dated 30-7-1975. The suit was decreed on 20-10-1975. Thereafter, application for execution was filed. The decreetal amount, at that time, was Rs. 6,825. 50. Execution Case was registered as Execution No. 20 of 1978, Asa Ram v. Shiv Nandan. Execution was sought through sale of the attached property. The agricultural property was sold in auction for Rs. 16,000/ -. Vijay Pal Singh, respondent No. 2 was the auction purchaser. Auction took place on 7-8-1979. Thereafter, objections were filed by the petitioner under Order XXI Rules 66, 89, 90 and 93 and Sections 47 and 151, C. P. C. Objections were filed on 25-3-1980 and were registered as Misc. Case No. 34 of 1980. Executing Court/civil Judge, Rampur, allowed the objections through order dated 19-5- 1981 and set aside the auction.

(3.) THE Appellate Court approved the findings of the Trial Court/executing Court. However, the Appellate Court allowed the appeal only and only on the ground of limitation. It held that the objections filed by the petitioner were barred by time. It was contended before the Appellate Court by the petitioner that the plea of limitation was not taken before the Trial Court by the auction purchaser. In that regard, the Appellate Court held that plea of limitation could be taken even for the first time before the Appellate Court in view of Section 3 of the Limitation Act. THE Appellate Court held that objections ought to have been filed within 60 days from the date of sale. Argument of petitioner that sale was nullity and his objections were under Section 47, C. P. C. , also for which limitation of two months did not apply, was also noticed by the Appellate Court. THE Appellate Court in that regard mentioned that the petitioner in his objections did not plead that the sale was nullity and void, he also did not pray for declaration that the sale was void and he had only prayed to have the auction sale set aside under Order XXI, Rule 90, C. P. C. and other Sections on the ground of irregularity in attachment and sale. Language used in objections is not conclusive. If the allegations made in the objections may fall under Section 47, C. P. C. , then application will have to be treated under the said Section. Moreover, Section 47, C. P. C. had also been mentioned at the top of the application as one of the provisions under which application was being filed.