GURDIAL SINGH Vs. SAWARAN SINGH HAKIM SINGH

JUDGEMENT

(1.) THIS is an appeal of the judgment-debtor whose objections with regard to the sale of this house for a sum of Rs. 5,100/- in favour of the respondent auction-purchaser have been dismissed by the exercising Court and also in appeal by the Senior Subordinate Judge, Jullundur.

(2.) THE facts on which there is no dispute are these. A decree against the appellant Gurdial Singh for a sum f Rs. 519/- was passed ex parte on 27th of February, 1961 in favour of Sawaran Singh and another. Sawaran Singh decree-holder was not slow in execution of this decree and a warrant for attachment of the Judgment-debtors house was issued on 10th of May, 1961. This house was sold in auction for Rs. 5,100/- in favour of Shri Janak Raj respondent 2 on 16/12/1961. The judgment-debtor applied on 2nd of January, 1962. for setting aside the ex parte decree. He also preferred objections on 20th of January, 1962 making allegations that the house sold for Rs. 5,100/ was of the value of Rs. 25,000/- the auction was not preceded by proper publication that an application has been made to set aside the ex parte decreeing execution of which the sale has taken place. The provision of the Code under which this application was made is not mentioned but it has always been treated as an application under rule 90 of Order 21 of the Code of Civil Procedure. The order staying the confirmation of sale was passed on 19th of April, 1962. Subsequently, the application made on 2nd of January, 1962, was accepted and the ex parte decree against the judgment-debtor was set aside on 26th of October, 1962. The auction-purchaser thereafter promptly moved for "revival of the execution file" and prayed in his application of 3rd of November, 1962 to have the sale made on the 16th of December, 1961, confirmed under rule 92 of Order 21 of the Code of Civil Procedure. In reply to this application having been set aside the sale which had been made in execution of it became a nullity. The only issue framed by the execution Court is top this effect: "what is the effect of setting aside the ex parte decree on the rights of the auction-purchaser?" (2a) The execution Court by it order of 31st of August, 1963, accepted the application of the auction-purchaser for revival of the execution proceedings and by the same order holding that the objections filed by the judgment-debtor under Order 21, rule 90 were barred by time confirmed the auction sale under the provisions of rule 92 of Order 21. The judgment-debtor having failed before the lower appellate Court has come against to this Court in future appeal.

(3.) IT has been contended by Mr. Wasu, the learned counsel for the appellant that auction sale held on 16th of December 1961 could not have been confirmed by the Court on 31st of August 1963 at the instance of the auction-purchaser as the ex parte decree for the satisfaction of which the sale had taken placed had been set aside on 26th of October, this situation and indeed it was after the ex parte decree had been set aside the applied for it s confirmation though in the form of "revival of the execution file" on 3rd November 1962. both the then that once the objections preferred against an auction sale are dismissed under rules 89 90 or 91 or Order 21 Code of Civil Procedure the Court sale and thereupon the sale shall become absolute. " The Civil Procedure that " a plaintiff whose suit has been dismissed a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit " for purposes of this section has been held to he inapplicable to the proceedings for setting arise sale on ground of irregularity in the conduct of auction.