SHANTI Vs. LAKSHMAN

JUDGEMENT

(1.) BEING aggrieved by the order dated 22/03/07 passed by Xllth Additional District Judge, Indore in Execution Case No. 20-B/96, whereby the applications filed by the appellant U/o XXI Rule 89 CPC on 28/11/06 and U/o XXI Rule 26 CPC on 16/01/07 were dismissed, the present appeal has been filed.

(2.) FACTS in brief giving rise in the present appeal are that the respondent Nos. 1 and 2 filed a suit for realisation of a sum of Rs. 75,308/- on 27/03/% alleging that respondent Nos. 1 and 2 provided telephone connection to the appellant of which telephone number was 460443. It was alleged that appellant was supposed to make the payment after every two months, but the appellant failed to make the payment of bills dated 01/05/94 and 1/11/94 amounting to Rs. 66,644/ -. It was further alleged that a demand notice was given to the appellant on 24/02/95, but inspite of that the amount was not paid. Again notice was issued to the appellant on 16/03/96 but of no avail. In the suit it was prayed that a decree of a sum of rs. 75,305/- be passed against the appellant along with interest.

(3.) THE suit was filed U/o 37 CPC and an ex-parte decree was passed against the appellant on 27/08/98, whereby the appellant was directed to pay a sum of rs. 75,305/- along with interest @ 12% p. a. on Rs. 66,644/ -. Since the amount was not repaid, therefore, execution petition was filed on 22/01/01 for realisation of a sum of Rs. 1,02,264/ -. Vide order dated 06/08/01 notice of execution application was issued to the appellant, which was returned unserved with a note that appellant has left Indore and has sold the house. On 12/11/02 an application was filed by respondent Nos. 1 and 2 for issuance of recovery warrant, which was ordered to be issued by the learned Executing Court. However, notice was never issued as no process was paid by respondent Nos. 1 and 2. Thereafter on 03/09/04 an application was filed by respondent Nos. 1 and 2 U/o XXI Rule 54 CPC for attachment of house of the appellant situated at 145 Vidya Nagar, Indore, which was allowed by the learned Executing Court and the property of the appellant was attached. Thereafter on 13/12/04 respondent Nos. 1 and 2 filed another application for auctioning the attached property and the learned Executing Court directed for issuance of notice of the application. Vide order dated 04/04/05 learned executing Court directed for issuance of notice by publication in the daily news paper. After publication the learned Executing Court proceeded ex-parte against the appellant and the suit property was sold to respondent No. 3 for a sum of rs. 11,00,000/ -. After depositing of the sale amount, sell certificate was also issued in favour of respondent No. 3 on 24/01/06. Thereafter on 28/11/06 appellant filed an application U/o XXI Rule 89 CPC for setting aside the sale alleging that the appellant was having no knowledge about the decree passed by the learned Court below and was also having no knowledge about the execution proceedings. It was alleged that appellant could not appear before the learned Civil Court and also before learned Executing Court as the appellant was never served with the summons / notice of the suit / execution and was also not having any knowledge of the same. It was alleged that in Court sale a fraud has been played and the property of the appellant worth Rs. 40,00,000/- has been sold on a marginal amount on account of default of payment of telephone bills. Along with the application appellant also submitted a demand draft of Rs. 1,02,264/- and also a sum of rs. 55,000/- having 5% of the purchased money for the payment of respondent no. 3 with a request to set aside the sale, which has been confirmed in favour of respondent No. 3.