CHANDGI RAM Vs. JAGMAL AND ANR.

JUDGEMENT

(1.) This revision petition is against the order of the executing Court dated 27.8.1991 whereby the executing Court set aside the order dated 3.5.1985 holding that the same is illegal and unwarranted and issued warrant of possession. The execution application filed for recovery of decretal amount of Rs. 2,705.00 has, indeed, chequered history. The respondent-decree holder filed an execution application to recover a sum of Rs. 2,705.00 and in this process land measuring 16 Kanals 17 Marlas was got attached. The petitioner filed objection petition before the executing Court and also prayed that further proceedings with regard to the sale of the land alleged to have been attached be stayed. The executing Court vide order dated 5.8.1978 stayed the same subject to the condition that the petitioner will deposit 1/2 of the decretal amount. Pursuant to this order, the judgment debtor deposited a sum of Rs. 1,400.00 on 7.9.1978. However, later on application of the petitioner was dismissed on 8.3.1979 and warrant of sale was issued for 21.4.1979. However, it came to light that attachment of the immovable property had not been effected till then and this way the warrant of sale could not be issued as per office report. The executing Court, however, vide order dated 15.10.1979 once again issued warrant of sale. The petitioner consequently filed an application under Order 21 Rule 66 of the Code of Civil Procedure contending that no notice was given to the judgment debtor and so the sale be set aside. The executing Court framed issue and fixed for evidence of the judgment debtor on 25.1.1980. However, before deciding the objections of the judgment debtor fixed for determination on 25.1.1980, the land of the petitioner was put to sale in which no other person except Hazari Lal participated and the land was auctioned for a paltry sum of Rs. 3,100.00 only. However, on the date fixed, none of the parties put in appearance and so the objections were held to have been dismissed. The judgment debtor consequently filed another application under Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale and permission to deposit the balance amount of Rs. 1,505.00 and the auction amount of Rs. 155.00 which amount was deposited with the permission of the Court as is clear from the certified copy of the challan Annexures P-3 and P-4. The fact that the judgment debtor has deposited the decretal amount along with the costs of auction proceedings, as ordered by the Court, judgment-debtor felt contended that he has satisfied the decree. Interestingly, the executing Court did not pass any order on the application filed by the judgment debtor under Order 21 Rule 89 of the Code of Civil Procedure till the year 1985 when the executing Court vide order dated 3.5.1985 set aside the sale and dismissed the execution application as satisfied. The relevant part of the order reads as under:-

(2.) Despite this order, the legal representatives of respondent No. 2 Hazari filed an application for issuance of sale certificate on 2.5.1990 which the Court was pleased to issue on 5.6.1990. On the issuance of sale certificate, legal representatives of respondent No. 2 filed execution for issuance of warrant of possession which has been ordered vide the impugned order.

(3.) The impugned order is legally unsustainable. The executing Court has erred in law in not following the various steps envisaged by Order 21 before putting the land of the judgment debtor to auction. Order 21 Rule 54 of the Code of Civil Procedure specifically envisage the attachment of an immovable property which in turn requires that judgment debtor be apprised of the same by issuing notice of the date to be fixed for settling terms for proclamation of sale. There is no proof on record that any such notice was issued to the judgment debtor and in the absence of the same, any subsequent proceeding conducted with regard to sale of property is per se illegal. In the instant case, there has been non-compliance of "Order 21 Rule 66 of the Code of Civil Procedure which again require that proclamation of sale shall be drawn out after notice to the decree holder and the judgment debtor. Perhaps the executing Court was aware of the infirmity in the auction proceedings and so set aside the sale dated 29.11.1979 vide order dated 3.5.1985. In this order it was further observed that the judgment debtor has deposited the whole of the amounts as involved in the auction purchase within the stipulated period. Since the amount has been deposited way back in the year 1979, the order confirming the sale or issuance of certificate of sale subsequently are thus wholly unsustainable. Accordingly, the order confirming of sale dated 25.1.1980 is per se illegal. Consequently, the issuance, of sale certificate and order of possession passed vide the impugned order too are illegal and unwarranted as per facts of the present case. I accordingly hold that the decree stood satisfied on the deposit of the decretal amount by the judgment debtor on 7.9.1978 and 6.12.1979.