GURBEJ SINGH KHANUJA Vs. UNION OF INDIA

JUDGEMENT

(1.) Being aggrieved by the order dated 22.3.2007 passed by XII Additional District Judge, Indore in Execution Case No. 20-B/96, whereby the applications filed by the appellant under Order 21 Rule 89, Civil Procedure Code on 28.11.2006 and under Order 21 Rule 26, Civil Procedure Code on 16.1.2007 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 27.3.1996 alleging b 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 1.5.1994 and 1.11.1994 amounting to Rs. 66,644/-. It was further alleged that a demand notice was given to the appellant on 24.2.1995, but in spite of that the amount was not paid. Again notice was issued to the appellant on 16.3.1996 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 under Order 37, Civil Procedure Code and an ex parte decree was passed against the appellant on 27.8.1998, whereby the appellant was directed to pay a sum d 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 22.1.2001 for realisation of a sum of Rs. 1,02,264/-. Vide order dated 6.8.2001 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 12.11.2002 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 3.9.2004 an application was filed by respondent Nos. 1 and 2 under Order 21 Rule 54, Civil Procedure Code 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 13.12.2004 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 4.4.2005 learned Executing Court directed for issuance of notice by publication in the daily newspaper. 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 24.1.2006. Thereafter on 28.11.2006 appellant filed an application under Order 21 Rule 89, Civil Procedure Code 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.