MULLOBAI Vs. RAGHUBARDAYAL

JUDGEMENT

(1.) THIS is the objectors' revision against the executing Court's order dated 21-12-1979, whereby their objection under Order 21, Rule 58 of the Code of Civil Procedure was dismissed as being untenable.

(2.) IN the course of execution of a money decree, the house in question alleged to be belonging to the judgment-debtor was attached. After the attachment, the sale proceedings continued in accordance with the procedure prescribed under the respective Rules of Order 21 Civil Procedure Code. It is not in dispute that, finally, the auction had taken place on 22-11-1978 and the sale was knocked down in favour of the highest bidder. It is equally not in dispute that the said sale has not yet been confirmed, and the sale has not been made absolute as yet. The judgment-debtor's widow-mother mullobai and his two brothers filed the objection under Order 21, Rule 58 civil Procedure Code on 18-12-1978, about a month after the knocking down of the sale in favour of the highest bidder. The executing Court vide the order which is impugned before me, held this objection as untenable because of the debarring provision under Proviso (a) of Rule 58 (1) of Order 21, civil Procedure Code, which clearly mandated that "no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold. " Since according to the executing court, 'sale' had already taken place on 22-11-1978, the subsequent objection of the third party which was filed on 18-12-1978 was not liable to be entertained. The objection, accordingly, was dismissed and, hence, now, the objectors' present revision.

(3.) LEARNED counsel for the applicants-objectors has urged before me the solitary point that the Proviso (a) of sub-rule (1) of Rule 58 of Order 21, civil Procedure Code is not attracted at all, inasmuch as, the public auction dated 22-11-1978 could not be treated to be a 'sale'. According to the applicants, unless the sale proceedings were fully complete and unless the sale was confirmed and was made absolute, it would be no 'sale' in the eyes of law, and, therefore, the objection under Order 21, Rule 58 Civil Procedure Code could not be thrown out as untenable till the process of confirmation of sale was complete. Learned counsel for the non-applicant-decree-holder has expressed his dissent with this view and has urged to the contrary, that as soon as the 'sale' is knocked down in auction, it is a 'sale' for purposes of the provisions of Order 21, Rule 58 Civil Procedure Code.