GURLAL SINGH CHEEMA Vs. PUNJAB AND SIND BANK

JUDGEMENT

(1.) SUIT for recovery by Punjab and Sind Bank was decreed against Mohinder Singh, Phula Singh and Gurbax Singh, defendants. In execution of that decree, the decree holder got attached one house and one flour-mill belonging to Mohinder Singh, judgment debtor The attached property was put to auction on 3 10 1983. In auction, the house was sold for a sum of Rs. 22,200/-, whereas the flour-mill for Rs. 12,800/ -. The house was purchased by G. S Cheema (petitioner herein) and the flour-mill by Dilbagh Singh, Mohinder Singh challenged the sale mainly on the ground of material- irregularity and fraud in publishing and conducting the sale. Objection was also taken that the house sold in auction was the main residential house of the judgment debtor and thus,-was exempt under proviso (ccc) of sub section (1) of Section 60 of the Code of Civil Procedure. Objection preferred by the judgment-debtors on contest were dismissed. The executing Court found that there was no fraud or irregularity in publishing or conducting the sale. With regard to the objection of house being main residential house, it was held that the house was under the tenancy and judgment-debtor himself was residing at Jammu and, therefore, was not exempt as claimed by the judgment-debtor. It was also held that the judgment-debtor was not entitled to raise this objection after the property had been put to sale. On appeal by the judgment debtor, the order of the executing Court was modified to the extent that auction with regard to flour-mill was upheld, whereas sale of the house was set aside on the ground that it was main residential house of the judgment debtor and therefore, was exempt under proviso (ccc) of sub section (1) of Section 60 of the Code of Civil Procedure. The order of the first appellate Court is being challenged by the auction-purchaser in the present revision petition.

(2.) HAVING heard the learned counsel for the parties at length, I am of the view that this revision petition deserves to succeed. In execution preferred by the decree, holder for realisation of the decretal amount notice was sent to the judgment-debtor who in response to the same, appealed before the executing Court. The decree-holder made an application under Order 21, Rule 6 of the Code of Civil Procedure for setting the terms of the sale. Notice of the application was given to the judgment-debtor who did not prefer any objection to that. Prior to the giving of notice as required under Order 21 Rule 66 of the Code of Civil Procedure, the property had already been attached on 9. 4. 1983. It was to the knowledge of the judgment debtor that the property had been attached on 9. 4 1983. He made no effort to make any objection to the attachment on any ground, muchless house being exempt under proviso (cc) of sub section (1) of Section 60 of the Code of Civil Procedure. As a matter of fact, on 23. 7. 1983, he got the case adjourned for depositing the decretal amount. On his request, adjournment was allowed, but he failed to deposit the amount Again on 2 9 1983, he made an application for making payment f the deeretal amount in instalments His prayer was again allowed and vide order dated 10. 9. 1983, he was asked to deposit instalments by 28 9. 1983, but he did not deposit the amount. The auction took place on 3. 10 1983. Objections were preferred on the day when house and the flour-mill were put to auction In such circumstances I am of the view that the judgment-debtor is not entitled to raise an' objection with regard to sale ability of the property under Section 60 of the Code of Civil Procedure. For this, I find support from the Full Bench decision of the Lahore High Court in Gauri v. Ude and Ors. , A. I. R. 1942 Lah. 153, wherein it was held that judgment-debtor who had the notice of the attachment and was also served with proclamation of sale under Order 21 Rule 66 of the Code of Civil Procedure, fails to raise objection to the proposed sale, he would be barred by the principles of res judicata for raising such an objection. The judgment-debtor is also not entitled to challenge the sale because of the proviso added by this Court to Rule 90 of Order 21 of the Code of Civil Procedure, which provides that no sale shall be set aside on any ground which the applicant could have put forward before conducting of the sale. If the judgment debtor had any grievances against attachment he could have raised an objection to that effect before the sale took place. He cannot be permitted to raise an objection relating to attachment of the property after the sale. The Additional District Judge, while- upholding the objection with regard to the house, has not taken into consideration this aspect of the case and, therefore, the impugned order cannot be sustained.

(3.) AS a result thereof, this revision petition is allowed, order of the Additional District Judge is set aside and that of the executing Court is restored with no order as to costs.