DEVINDER SINGH Vs. HARDEV SINGH

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution by a subsequent vendee challenges order dated 29-11-2003 passed by the Civil Judge (Jr. Division), Malerkotla dismissing his objections filed under Order XXI, Rule 90 of the Code of Civil Procedure, 1908 (for brevity, 'the Code). The suit of the decree-holder respondent 1 (for brevity, DH-respondent 1) Hardev Singh for recovery of Rs. 30.800/- was decreed on 7-1-1993. On 31-7-1991 an attachment order was issued In respect of the property owned by judgment-debtor-respondent 2 (for brevity, JD-respondent 2). The property number mentioned was B-IX-370. No objection was taken by the JD-respondent 2 with regard to the attachment or the number of the property given. The only objection raised was that he has sold the property to the objector-petitioner by a sale deed executed and registered on 9-9-1992, However, the objector-respondent filed objections stating that municipal number of the attached property was B-IX-145. Therefore, the attachment order cannot be read as attachment In respect of the property purchased by the obj ector - petitioner.

(2.) Mr. Avnish Mittal, learned counsel for the objector-petitioner has argued that the new number, namely, B-IX-145 or B-XVTII-145 was allotted to the property in dispute In the year 1987 as per the statement made by OW-4 Harjinder Singh, House Tax Clerk, Municipal Council, Malerkotla. According to the learned counsel, the attachment order was issued in 1991 in respect of the old number i.e. B-IX-370. As the boundaries of the property are different and attachment order has been Issued in respect of half of the property, the attachment order cannot be read in respect of the property described as B-IX/B-XVIII-145. In support of his submission, the learned counsel has placed reliance on the judgments in the cases of M. Veera Raghavaiah v, P. Singa Rao, 1998 (1) Civ CC 187 (AP) and Sabulal v. Kunnamma, 2001 (1) Civ CC 698 (Kant) and argued that once the attachment order fails to mention the shops in the attached property, then it has to be held as a material irregularity. Therefore, the objections filed by the objector-petitioner were meritorious and should have been accepted. According to the learned counsel, his case is squarely covered by the judgment of Andhra Pradesh High Court where non-mentioning of rice mill and godown existing in the property was considered to be a material irregularity.

(3.) Having heard the learned counsel and perusing the order passed by the executing Court, 1 am of the considered view that there is no material irregularity or fraud in publishing or conducting the sale as contemplated under Order XXI, Rule 90 of the Code. The JD-respondent 2 did not raise any objection on 31-7-1991'when the order of attachment was issued either with regard to identity of the property or with regard to his ownership. However, he only stated that he had sold the property to the extent of his share to the objector-petitioner. It is well settled that no application to set aside a sale under Order XXI, Rule 90(3) of the Code could be entertained on any ground which the objector-petitioner could have taken on or before the date on which the sale was to be held. The auction proceedings were initiated in accordance with law. The objectorpetitioner has purchased the property on 9- 9-1992 after attachment order dt. 31 -7-1991 at his own risk and responsibility. The identification of the property was not disputed by the JD-respondent 2. Therefore, I do not find any merit in the instant petition and the same is liable to be dismissed.