DHARAM PAL Vs. LUDHIANA IMPROVEMENT TRUST AND OTHERS

JUDGEMENT

(1.) - The petitioner-auction purchaser is aggrieved against the order passed by the learned First Appellate Court whereby the appeal of the judgment-debtor against the order dismissing the appeal of the judgment- debtor against the order dismissing his application under Order 21 Rule 89 and Order 21 Rule 90 of the Code of Civil Procedure (hereinafter to be referred as "the Code") was allowed and it was held that sale suffers from material irregularities.

(2.) The decree-holders filed an execution application for recovery of the amount of Rs. 2,49,618-05 from the judgment-debtor i.e. Ludhiana Improvement Trust on account of compensation of the land acquired. The property of the judgment-debtor i.e. plot measuring 400 sq. yards situated in Rani Jhansi Road, Ludhiana, was put to auction on 4.12.1995. In the said auction, the present petitioner was the highest bidder in the sum of Rs. 13,50,600.00. After the petitioner was found to be the highest bidder, the judgment-debtor filed one application for stay of confirmation of sale on 22.12.1995 wherein it was pointed out that the judgment-debtor has already deposited a sum of Rs. 1,82,399/and after deducting a sum of Rs. 11,159.00 as income-tax, the balance amount has been disbursed to the decree-holders on 7.6.1995 and the judgment- debtor is prepared to pay the entire amount to the decree-holders after adjustment of the amount already paid within a reasonable time. However, on 3.1.1996, the judgment-debtor moved an application under Order 21 Rule 89 of the Code and deposited the balance amount of decree alongwith 5% of the decretal amount/purchase money i.e. Rs. 67,219.00 towards the balance of the decretal amount and Rs. 12481/- towards 5% of the decretal amount.

(3.) The learned Executing Court dismissed the applications filed by the judgment-debtor on 22.12.1995 and 3.1.1996 and ordered confirmation the sale. The learned Executing Court dismissed such application for the reason that 5% of the amount required to be deposited by the judgment-debtor is the amount of auction sale and since the said amount has not been deposited, therefore, the learned Executing Court dismissed such application. However, the appeal against the said order has been accepted as the learned first Appellate Court has found that the sale of the property is vitiated on account of non-serving of mandatory notice to the judgment-debtor under Order 21 Rule 66 of the Code as well as for the reason that the property measuring 400 sq. yards was put to auction for Rs. 13,50,600.00 whereas only portion of the property was sufficient to satisfy the decree. The Court remanded the matter to the learned Executing Court to give proper notice to the judgment-debtor before drawing upon the proclamation of sale and to put to auction only a portion of the property which is sufficient to satisfy the decretal amount.