GORELAL RAMLAL Vs. MOTILAL SOBHAGMAL

JUDGEMENT

(1.) THIS civil revision filed under section 115 of the Code of Civil procedure is by the judgment-debtor Whose 23. 17 acres of land has been sold in execution of a decree against him by mistake and in spite of the Order dated 17-7-1976 of the Executing Court to sell only 4. 98 acres.

(2.) IT appears that the non-applicant No. 1 Motilal filed a suit in the Court of Small causes against the applicant and obtained a decree for a sum of Rs 437/- only. The applicant deposited Rs. 50/- on 20-3-1978 but failed to pay all the decretal amount Since the decree was put in execution, the applicant's entire agricultural holding of 23. 17 acres was attached. Thereafter, the non-applicant decree-holder himself applied to the Court that decree would be satisfied only by selling land forming part of khasra no. 197 and measuring 4. 98 acres. On this application the Executing Court passed an order dated 17-7-1976 directing that only khasra no. 197 be sold in execution of the decree. Inspite of the aforesaid order, the entire holding was auctioned and ultimately purchased by the non-applicant no. 2 for a sum of Rs. 2,000/- only. On this the applicant made an application to the Executing Court under section 151, Civil Procedure Code praying for setting aside the sale. In this application the applicant also submitted that he has paid the decretal amount to the decree-holder and thereby satisfied the decree. The Executing court was of the view that the applicant knew the entire proceedings and yet did not take any objection as required by law. According to the learned Executing Court, the sale has been confirmed on 7-2-1979 and hence he cannot now be heard in the matter. It was also the view of the Executing Court that objection to the sale can be taken only in accordance with Order 21 of the Code and since those objections were not taken under those provisions, remedy under section 151, Civil Procedure Code is not available. The application was accordingly dismissed. That is how the matter is in this Court in the present Civil Revision filed under section 115 of the Code of Civil Procedure.

(3.) AT the very outset it must be mentioned that the applicant has either been negligent or over-confident about the procedure adopted by the Executing Court. There is no dispute that only 4. 98 acres of land should have been sold as ordered on 17-7-1976. In spite of it, the entire holding of 23. 17 acres has been sold. The applicant had, no doubt the right to object to such sale, and he has not utilized those opportunities either because of his own negligence or his confidence in the efficacy of the rule of law. The question, however, is whether the Court having violated its own order should feel helpless in remedying the wrong and removing the cause of injustice ?