BHAGWAT PERSHAD TANNUMAL Vs. ABDUL BASIT ABDUL KHALIQ

JUDGEMENT

(1.) THE sale in execution proceedings of the suit property consisting of house on 17th of January 1959 and its confirmation by the executing Court of 27th of September 1960 has given rise to two Execution First Appeals, one by the judgment-debtor Bhagwat Parshad (E. F. A. No. 126-D of 1960) and the other by the auction-purchaser Shiv Devi (E. F. A. No. 129-D of 1960 ). The auction-purchaser, who is represented by Mr. Narula, having withdrawn the appeal before arguments we are left only with E. F. A. No. 126-D of 1960 for disposal.

(2.) THE decree-holder respondent Abdul Basit obtained two money decrees against Bhagwat Parshad appellant on 12th of January 1953 on the basis of loans, one for Rs. 8,000/- and the other for Rs. 5,448/- with costs.

(3.) THE first execution application was filed by Abdul Basit on 10th of March 1953 and the house of the judgment-debtor appellant in Naiwara, Chawari Bazar, Delhi, was attached. In the application filed under Order 21, Rule 66, the decree-holder applied for settlement, of terms of the proclamations; the value of property was stated to be Rs. 16,500/- and the boundaries of the house to be sold were also mentioned. Before the date of sale the judgment-debtor made an application for grant of time to enable him to sell his property by negotiations. The executing Court acceded to the prayer of the judgment-debtor who, however, failed to bring about a private sale. It was then ordered that the sale should take place on the 15th March, 1954. Before the date of sale the judgment-debtor filed a declaratory suit and gained further time thereby. Another order for sale was made on 5th of November 1955 and the date of auction was fixed for 5th of December 1955. This time sale could not take place as the proclamation had not been issued. The auction was next fixed for 22nd of August 1956 but the judgment-debtor made an application under Section 60 of the Code of Civil Procedure on 16th of July 1956 that the house was exempt from attachment because the Punjab Relief of Indebtedness Act had been extended to Delhi on 8th of June 1956 and under Section 35 thereof one main residential house of the judgment-debtor was immune from attachment. This application, however, was dismissed by the executing Court on 17th of August 1956 on the ground that the relief afforded by the Punjab Act could not be availed of by the judgment-debtor because his house had been attached before 8th June 1956 when the Act was made applicable to Delhi. An appeal was filed to the High Court and an interim order of stay of sale fixed for 26th of August 1956 was obtained. The Executive First Appeal was dismissed by a Motion Bench of the High Court on 20th of November 1956. Before the appeal was dismissed Chief Justice Bhandari had modified the stay order by directing that the sale may take place but its confirmation should be withheld till the decision of the Motion Bench. In pursuance of this order, a proclamation for sale of the property on 23rd November, 1956 was made on 29th of October 1956. The judgment-debtor applied a few days earlier on 16th of November 1956 that the proclamation was defective as it had omitted some of the essential details. Though these objections were dismissed, some other creditors of the judgment-debtor had stepped in. At the instance of the creditors, the sale remained stayed for some time and was ultimately fixed for 12th of April 1958. The sale however remained stayed and the decree-holder had to move an application that the property should be, sold as there was no longer any subsisting order of stay. The Court gave notice to the judgment-debtor on 19th of September 1958 to appear on 8th of October 1958. The order for sale of the suit property on 17th January 1959 was made by the Court on 13th of November 1958. The proclamation was drawn up on 8th of December, 1958. The judgment-debtor made still one more effort to have the sale stayed by an application which he moved on 8th of January 1959 in which adjustment of the decree was pleaded. The prayer for stay was refused.