GOVIND VITHAL VELGUENCAR Vs. VISHNUM GOPAL VELGUENCAR

JUDGEMENT

(1.) THE petitioner/judgment debtor had filed an application under Order 21, Rule 90 C. P. C. for setting aside sale by auction during execution proceedings. The suit, out of which the execution proceedings had arisen, was for recovery of money. The suit was decreed to the tune of Rs. 4000/- with 18% interest per annum with effect from 20th May, 1986 and to the tune of Rs. 2350/- with interest at the rate of 22% interest per annum with effect from 20th May, 1986. In order to recover the said amount, the decree holder respondent No. 1 in the proceeding before me had filed an application for execution. In the said execution application respondent No. 1 had sought attachment of house bearing No. 458/c situated at Davorlim, Opposite Laxmi Niwas, Margao in plot under Survey No. 87 of Plot No. 32b. Even though the respondent No. 1 had sought for attachment of immovable property, but the Civil Judge J. D. , Margao on account of sheer carelessness on his part ordered attachment of movable property vide Order dated 10-1-92. However, attachment order dated 24th January, 1992 under Order 21, Rule 54 C. P. C. was fortunately issued in respect of the immovable property namely residential house bearing No. 458-C situated at Davorlim, Opposite Laxmi Niwas, Margao in Plot No. 32b. The survey number which had been given by the decree holder respondent No. 1 in the execution application was, however, omitted in the said attachment order which was served on the judgment-debtor namely the petitioner. In the said notice for attachment, Civil Judge J. D. , Margao had directed the judgment-debtor namely the petitioner to attend the Court on 2nd April, 1992 to take notice of the date fixed for settling the terms of proclamation of sale. On 17-7-1992 decree-holder namely respondent No. 1 filed the application under Order 21, Rule 64 C. P. C. for settling terms of sale of proclamation and for fixing a date for public auction. Such application is required to be verified by the decree-holder in terms of Order 21, Rule 66 (3) C. P. C. However, the application filed by the decree holder for the said purpose on 17-7-1992 was not at all verified. In fact, the application was signed by Advocate for decree-holder and the said application was not even signed by the decree-holder. Along with the said application a draft sale proclamation was filed. However neither in the application nor in the said draft of sale proclamation any detail was given in respect of the value of the property sought to be auctioned. Second proviso to Order 21, Rule 66 (2) C. P. C. provides that the Court shall not enter in the sale proclamation its own value of the property but the proclamation shall include the estimate, if any, given by either or both the parties. The terms of sale proclamation were drawn on 11th August, 1972, wherein approximate value of the property shown was Rs. 30,000/- and it cannot be ascertained from the record as to how the said valuation was arrived at in the sale proclamation. No specific notice for drawing terms of sale proclamation was given to the petitioner and the sale proclamation was ordered to be issued on 17-7-1992 itself when application for the said purpose had been filed by Advocate for the decree holder on the same day. This sale proclamation was published in the newspaper. It appears that the auction which was fixed on 29th August, 1992 could not take place on account of some objections raised by the office. These facts can be found in application dated 11-9-92 filed by the Advocate for the decree holder. One of the objections was insufficient description of the suit property and Advocate for the decree holder by application dated 11-9-92 furnished full details of the property. At this stage I would like to point out that a Single Judge of the Bombay High Court in (Jaikisandas Balchand Pamnani and another v. Municipal Corporation of Greater Bombay and others) A. I. R. 1991 Bombay 341 has held that a material misdescription in sale proclamation would vitiate the same. It may also be pointed out here that Civil Judge, J. D. , Margao in Order dated 11th March, 1994 which was passed on application of the Judgment-debtor namely the petitioner under Order 21, Rule 90 C. P. C. has held that this proclamation was not properly made or published. These findings were never challenged by the decree holder either by filing a counter appeal or in this revision.

(2.) AFTER the full description of the property was given by the Advocate for the decree-holder on 11-9-92, the auction was fixed on 25th September, 1992. Notice of this application was given to the judgment-debtor namely petitioner which was served on him on 22-9-92. A fresh proclamation was drawn on 16th September, 1992 incorporating detailed description of the property to be sold and this proclamation was published in terms of Order 21, Rule 54 (2) C. P. C. on 23-9-92 i. e. before two days prior to the date of the auction. It may also be pointed out that this sale proclamation was drawn without any notice whatsoever to the judgment-debtor namely the petitioner. The auction was held on 25th September, 1992 and the house as well as the property around was purchased by auction purchaser who is respondent No. 2 in this proceeding for Rs. 56,000.

(3.) ON 8th October, 1992 the judgment-debtor namely the petitioner filed an application under Order 21, Rule 90 C. P. C. upon which impugned order was passed by the courts below. The matter was argued at length before me by learned counsel for the parties.