SHARMA RICE MILLS Vs. ZIMIDARA FRIENDS TRADERS

JUDGEMENT

(1.) The facts giving rise to this revision petition are that respondent No. 1 took out execution for the recovery of Rs. 47,129.10 against M/s. Sharma Rice Mills, a partnership concern, and its partners, in the court of the Additional Senior Subordinate Judge, Nabha. It appears that in the execution the judgment - debtors' Rice Mills together with the land measuring 8 Bighas 15 Biswas situated on the outskirts of the town of Nabha was attached. The decree holder moved the executing court under Order 21 Rule 66 of the code of Civil Procedure (hereinafter referred to as 'the Code') for settling the terms of proclamation. The judgment -debtors filed a reply, as also objections under Ss. 47 and 60 of the code. Without deciding the objections filed by the judgment -debtors, the executing court proceeded to fix a schedule of dates for sale by auction. Aggrieved by the above order of the executing court, the judgment -debtors filed Civil Revision No. 2517 of 1991. The relief claimed by the petitioners in the said Civil Revision was that the executing court be directed to dispose of the judgment -debtors' objections before settling the terms of the proclamation and proceeding with the sale. The petitioners also prayed for staying the auction till decision of the revision petition. By order dated August 2, 1991 in the said Civil Revision, G.C. Garg, J. directed notice of motion to be issued to the decree -holder for September 3, 1991, and in the meantime directed stay of the sale subject to the petitioners furnishing bank guarantee in the sum of Rs. 25,000/ -. It was farther directed by the learned Judge that if the petitioners failed to furnish the said bank guarantee the property only to the extent of Rs. 50,000/ - shall be sold and not the entire property under attachment. Later on, on behalf of the decree -holder Civil Misc. No. 8196 -CII of 1991 under Sec. 151 of the Code was made in which it was stated that the judgment debtors failed to furnish the bank guarantee as ordered by this Court and accordingly the stay against the sale did not become operative and on August 3, 1991, the executing court allowed time to the judgment -debtors to furnish bank guarantee in terms of the order of this Court upto September 7, 1991. The judgment debtors having failed to furnish the bank guarantee, the executing court directed that property under attachment worth Rs. 50,000/ - only be sold. The sale was fixed for September 30, 1991. It may be mentioned here that the executing court did not decide the objections under 21 Rule 66 of the code filed by the judgment -debtors. In compliance with the above orders, a part of the land of the Rice Mills 16 Karams x 50 Karams from out of Khasra No. 1031 was put to auction by the Tehsildar. The highest bid of Rs. 53,500/ - was made by the decree holder, Karnail Singh, partner of the decree -holder firm, and in view of the sale having already been held, it was prayed that the revision petition aforesaid be dismissed as infructuous. By order dated October 7, 1991, a learned Judge of this Court dismissed Civil Revision No. 2517 of 1991 as infructuous.

(2.) The executing court dismissed the judgment -debtors' objections under Order 21 Rule 66 of the Code by order dated August 12, 1991. Aggrieved by the order, the judgment -debtors preferred the present Civil Revision No. 3647 of 1991.

(3.) Mr. K.S. Grewal, learned Counsel for the respondent decree -holder, has taken a preliminary objection that the sale having already taken place, the only remedy available to the petitioners was to make an application under Order 21 Rule 90 of the Code assailing the sale and the present revision must be dismissed as infructuous. He has placed reliance on Jaswantlal Natvarlal Thakkar v/s. Sushilaben Munilal Dangarwala and Ors. : AIR 1991 SC 770.