MUKESH KUMAR SANGHVI Vs. SAIFUDIN

JUDGEMENT

(1.) THIS first appeal filed under S. 96 of the Code of Civil Procedure (for short C. P. C.) is directed against the order dt. 21. 04. 07 passed by the Ist Additional District Judge, Dhar in Execution Case No. 18-A/2002-04 by which the appellant's objection filed under Order XXI Rule 58 of the C. P. C. has been rejected.

(2.) BRIEF facts necessary for disposal of this appeal are that one Omprakash S/o. Hiralal filed a Civil Suit No. 28-B/2002 against respondent no. 8 Raghunath oil Mills for recovery of Rs. 30,000/ -. In the said suit an order under Order XXXVIII rule 5 of the C. P. C. in nature of attachment before judgment was passed by the executing court on 05. 03. 02 attaching the properties of the Raghunath Oil Mills which are subject matter of the present execution case. The said suit no. 28-B/02 was ultimately decreed in favour of Omprakash. In the execution filed by the decree holder Omprakash a proclamation was issued in execution case no. 28-B/02-06 and the attached property was sold in the auction to appellant Mukesh kumar.

(3.) WHEN the matter stood thus, in an another Civil Suit No. 18-A/02 filed by the respondent no. 2 Saifuddin seeking specific performance of the contract the relief of specific performance of contract was denied to the plaintiff of the said suit Saifuddin. However a money decree for refund of Rs. 31,55,000/- was passed in his favour and against the defendants of the said suit including Raghunath Oil mills, Badnawar. In the execution of the said money decree after obtaining the permission of the executing court under Order XXI Rule 72 of the C. P. C, decree holder Saifuddin participated in the auction proceedings. Before the property could be sold in this execution proceedings no. 18-A/02-04, the appellant submitted his objection under Order XXI Rule 58 of the C. P. C. stating therein that the property which has been attached and to be auctioned this execution case was already attached before Judgment in the civil suit no. 28-B/02 and has been auctioned in execution case no. 28-B/02-06 and as such cannot be auctioned.