MOHD ALEEM Vs. BANK OF INDIA

JUDGEMENT

(1.) The appellant/judgment debtor No.3 has directed this appeal under Order 43 rule 1(J) of the CPC being aggrieved by the order dated 7 11.06 passed by the Ilnd Addl. District Judge, Bhopal in Execution Case No.424/05. dismissing his application filed under Order 21 rule 90 read with Section 151 of the CPC for setting aside the auction proceedings in respect of the mortgaged and the charged property of the impugned decree.

(2.) The facts giving rise to this appeal in short are that respondent No.1/ plaintiff instituted the suit against the appellant and respondents 2 to 4 for recovery of Rs.5,85,677/- and interest with a prayer to sale the mortgaged property under Order 34 rule 5 of the CPC to recover such sum. The same was decreed on dated 15.2.99. Under execution of such decree the mortgaged property of appellant was placed on auction and the same was knocked down in favour of respondent No.5, on which the appellant filed the aforesaid application Under Order 21 rule 90 read with Section 151 of the CPC contending that the proclamation notice of such sale issued under Order 21 rule 66 of the CPC was never served personally on the appellant and respondents 2 to 4. The same was published in the Newspaper "Sandhya Prakash" on dated 21.6.02 whereby the date 13.11.02 for auction of such property was fixed. Having knowledge of the aforesaid proclamation, appellant filed an application under Section 151 of the CPC seeking permission to file his objections in that regard but the same was dismissed by the executing court vide order dated 13.7.04. Subsequent to it. the auction sale was not conducted on the date fixed by the aforesaid proclamation and thereafter without issuing any new proclamation under Order 21 rule 69 read with rule 67 of the CPC, the auction proceeding was carried out and the sale was knock-down in favour of respondent No.5 on dated 18.10.06 in consideration of Rs.7.00.000/-. whereas as per the present market rate the property was having the worth of Rs.20 lacs. The copy of the price-index obtained from the district registrar, Bhopal is also annexed with it. As per further averments, the impugned decree could have been satisfied by selling some part of the aforesaid property and executing court was bound to follow the mandatory provisions of Order 21 rule 64 of the CPC in that regard. In such premises the prayer for setting aside the aforesaid auction sale is prayed. The same was not replied on behalf of the respondent No. I the decree holder. On consideration, the executing court has dismissed the aforesaid application by the impugned order. Being dissatisfied with it the appellant," judgment debtor No.3 has come forward to this court willi this appeal.

(3.) Shri Pushpendra Yadav. learned counsel for the appellant assailed the impugned order saying that the aforesaid auction proceeding was carried -out without following the mandatory provision of order 21 rule 66 to. rule 69 of the CPC. By elaborating his arguments he said that after publication of the proclamation of sale if the auction proceeding was not carried on the date fixed then the court was duty bound to issue new proclamation in that regard under Order 21 rule 69 read with rule 67 of the CPC. The same was not complied with and contrary to it, the auction proceeding was carried- out. He further said that the alleged property was having the worth of Rs.20 lacs, while the impugned decree was passed for the sum of Rs.5,85,677/- and its interest and cost. The same could have been satisfied only by disposing some part of such property and placing the entire property on auction was not necessary in view of Order 21 rule 64 of the CPC but such mandatory provision has not been complied with by the executing court and the property of the appellant having worth of Rs.20,00.000/- was knocked-down only for consideration of Rs.7.00.000/-, thereby the right of the appellant has been prejudiced at large and on upholding the aforesaid auction proceedings, the appellant has to suffer irreparable injury which could not be compensated subsequently in any manner. He also placed his reliance on some reported cases and prayed for setting aside the impugned order and the auction proceedings by allowing this appeal.