MUKESH MAHESHWARI Vs. UNITED WESTERN BANK LTD

JUDGEMENT

(1.) This Revision is directed against the order dated 19-7-2006 passed in Execution Case No. 7B-2001 by Second Additional District Judge, Burhanpur (M.P.) rejecting the application/objection raised by the judgment debtor, the petitioner herein with respect to the confirmation of auction and issuance of sale certificate. The facts giving rise to filing of this Revision are that the respondent No. 1/bank has instituted a suit for recovery of certain loan amount from the father of the petitioner Shri Narayan Das Maheshwari. The suit was decreed and the execution proceedings were initiated. The Executing Court while passing an order on 19-2-2002 attached the suit property and put the same for auction on 8-8-2002. The auction was held in favour of the respondent No. 10 for an amount of Rs. 75,000/-. In terms of the auction, the said auction purchaser was required to deposit 25% of the auction sale amount immediately and was required to deposit the rest of the amount within 15 days. However, the said amount was not deposited. An objection was filed by the father of the petitioner on 22-10-2002 for setting aside the said auction dated 8-8-2002 on the ground that the compliance of the provisions of Order 21, Rule 85, Civil Procedure Code in full was not done and the full amount of consideration of the auction sale was not deposited by the respondent No. 10, therefore, the said proceedings were liable to be set aside. The auction sale was liable to be set aside. During the pendency of such proceedings, the original judgment debtor died and was substituted by the petitioner and other family member. However, since such an objection has been rejected, the present Revision has been filed.

(2.) It is contended by learned counsel appearing for the petitioner that the mandatory provisions of Civil Procedure Code are required to be seen. If the amount of auction sale is not deposited within the stipulated period, the auction is not to be confirmed. That being so, it was to be seen by the executing Court that the amount was deposited on 7-3-2006 and that being in violation of the statutory provision, the auction sale had become void and was not to be confirmed. However, this particular aspect is ignored on the ground that the matter on an application made by the petitioner or original judgment debtor was being contested and thereafter the same was transferred on account of transfer of the Presiding Officer of the Court, from one Court to another and during this period ultimately the deposit was made. Thus, it was found that no irregularity was committed in making the deposit. It is contended that in terms of the provisions of the Code, the deposit was must within the time which was not done and accordingly the auction sale cannot be confirmed. However, since this particular aspect is totally ignored, the order impugned is bad in law and is liable to be set aside.

(3.) Per contra, it is contended by learned counsel appearing for the respondent No. 10 that the auction sale was rightly held, the bid of respondent No. 10 was accepted, the deposit in terms of the orders of the Court was made and for the lapses on the part of the petitioner or the original judgment debtor, the respondent No. 10 was not to be denied the benefit of title over the property purchased in auction. This being the situation the Court below was right in rejecting the objection of the petitioner and no illegality whatsoever has been committed in passing the order impugned. Thus, it is contended that in view of the settled law, the objection raised by the petitioner was not to be entertained and since there is no jurisdictional error committed by the Court below, the Revision itself is liable to be dismissed.