SACHIDA NAND MISHRA Vs. VISHWANATH MISHRA

JUDGEMENT

(1.) THE present revision application is directed against an appellate order by which the findings of the trial Court in execution proceeding that the execution sale was valid has been reversed. The petitioner is the decree -holder and the Opposite Party is the judgment -debtor whose land has been auction -sold through process of Court in execution of the decree for cost. Brief fact material to appreciate the contention is that the plaintiff got a decree as against the defendant to cut and remove certain branches of Sertree at the cost of defendant. Defendant not having removed the same the plaintiff sought to execute the decree. The defendant says that having received such notice in execution he requested for time to do it himself.lt is further alleged that notwithstanding such prayer the plaintiff decree -holder then cut and removed the trees. The total cost incurred was about Rs. 150/ -. To recover the said cost certain landed properties of the judgment -debtor was sought to be auctioned. The decree -holder was the sole applicant in the auction and purchased nine and half Kathas of land lying along municipal road for about Rs. 350/ - in auction dated 2.7.1975. The sale was confirmed and thereafter application to set aside the sale having been filed purporting to be under Order XXI Rule 90 was dismissed by the executing Court against which appeal was preferred. An appeal was allowed on three counts. Firstly, in terms of Order XXI Rule 72 the decree -holder was prohibited from participating in purchase and as such, the purchase was without permission of Court which was void. Secondly, it was held that the sale notification was not duly served on the judgment -debtor which vitiated the sale and thirdly, the price at which the property was sold was grossly inadequate i.e. nine and half kathas of valuable land next to municipal road was sold at Rs. 350/ - it was considered very low for the year 1975 itself. The present revision application is against the said appellate order.

(2.) HEARD both the sides.

(3.) I , accordingly, set aside the order of the appellate Court and remand the matter to the appellate Court to give proper findings on the two issues aforesaid after hearing both the parties afresh. The parties would be at liberty to raise such other issues ot law or of fact which may be available to them. This revision application is, thus, allowed and the impugned order is set aside with the observation as above.