NARENDER SINGH Vs. KRISHAN

JUDGEMENT

(1.) The present revision petition has been filed under Art. 227 of the Constitution of India for setting aside order dated 08.02.2017 (Annexure P-6) passed by learned Civil Judge (Junior Division), Safidon.

(2.) Briefly, the facts of the case are that respondent No.1/decree holder filed a Civil Suit for recovery of an amount of Rs. 2,05,600.00 i.e Rs. 1,20,000.00 as principal amount and Rs. 85,000.00 as interest at the rate of 24% per annum against the petitioner/judgment debtor and his brother-Nirmal Singh. The suit was decreed on 29.03.2012 and it was ordered that respondent No.1/decree holder is entitled to recover Rs. 2,05,600.00 from the petitioner/judgment debtor with interest at the rate of 6% per annum from the date of filing of the suit till the date of actual realization. Petitioner/judgment debtor and his brother filed an appeal against the said order but the counsel for the petitioner/judgment debtor did not appear before the Appellate Court. The Appellate Court upheld the order of the trial Court and dismissed the appeal on 26.07.2013. However, the petitioner did not file Regular Second Appeal. Thereafter, respondent No.1/decree holder filed an Execution Petition. The petitioner gave statement before the Executing Court that he would pay Rs. 2,05,600.00 on 212014 to the respondent No.1/decree holder but the money could not be paid by them due to its shortage. However, their counsel gave an assurance that he will move an application for extension of time. Thereafter, on 03.12015, Civil Judge (Junior Division), Safidon passed an ex-parte order under Order 21, Rule 66 Code of Civil Procedure for proclamation of sales by public auction of one main residential house without issuing any notice to them. Auction of their house was held on 03.01.2016 and it was sold for Rs. 5,10,000.00. The house was purchased by respondent No.2-Kuldeep Singh, who is brother of respondent No.1/decree holder. As per auction report, the bid of the property, in dispute, was started from Rs. 1,50,000.00 by one Om Parkash and the highest bid was of Rs. 5,10,000.00 by said Kuldeep Singh. An application was moved by the petitioner/judgment debtor and his brother under Order 21, Rule 90 Code of Civil Procedure for setting aside the auction held on 03.01.2016 contending therein that auction was conducted without any proper proclamation as required under Order 21 Rules 54 and 67 of CPC; no publication was effected in local newspaper and official gazette; the property was sold below the collector rate and market rate. The petitioner/judgment debtor also moved an application on 08.01.2016 for setting aside the ex-parte order dated 03.12015 with an application for condonation of delay in filing the application. The application of the petitioner/judgment debtor under Order 21, Rule 90 Code of Civil Procedure was dismissed on 09.01.2017. On the same day, the application of the petitioner for setting aside the ex-parte order dated 03.12015 and application for condonation of delay were dismissed. Thereafter, respondent No.2/Auction purchaser moved an application under Order 21, Rule 92 Code of Civil Procedure for confirmation of sale and notice was issued to the petitioner for 30.01.2017. A request was made by counsel for the petitioner to file reply of the application, which was accepted. Thereafter, the case was adjourned for 08.02017 for filing reply of the application under Order 21, Rule 92 CPC. However, reply of the application was not filed on 08.02017 and again a request for an adjournment was made by counsel for the petitioner as he wanted to file appeal against order dated 09.01.2017. The request made by learned counsel for the petitioner was rejected and the application was decided without filing reply. Vide order dated 08.02017, the sale was also confirmed. The impugned order dated 08.02017 passed by the Civil Judge (Junior Division), Safidon is subject matter of challenge in the present revision petition.

(3.) Learned counsel for the petitioner submits that the impugned order has been passed hurriedly without giving any opportunity for filing reply of the application. Learned counsel also submits that notice in the application was received by the petitioner on 30.01.2017 and on the next date of hearing i.e 08.02.2017, the impugned order was passed within a period of one week of the notice. Learned counsel also submits that a request was made by counsel for the petitioner as he wanted to file an appeal against the order dated 09.01.2017. The appeal was filed on 08.02.2017 and the same was kept for consideration on 09.02.2017. Notice in the appeal was issued for 16.02.2017. Learned counsel also submits that the petitioner was having right to file appeal within a period of 30 days and he filed the same within the prescribed period but still the impugned order was passed before expiry of prescibed period of 30 days. Learned counsel further submits that the petitioner is having only one house, where, he is residing with his wife and three minor daughters.