NARAIN DASS Vs. LEGAL REPRESENTATIVE OF CHAMPA

JUDGEMENT

(1.) THIS petition under Order 47 Rule 1 read with Section 151, C.P.C. has been filed against the judgment dated August 4, 1987 passed by Hon'ble Mr. Justice S.S. Byas in S.B. Civil Execution Second Appeal No. 10 of 1974, dismissing the appeal and confirming the order of the learned District Judge, Sri Ganganagar dated May 13, 1974 dismissing the appeal and confirming the order of the learned District Judge, Sri Ganganagar dated May 13, 1974 by which he affirmed the order of the Civil Judge, Hanumangarh dated December 21, 1973, dismissing the objection petition moved under Order 21 Rule 90, C.P.C. of the Judgment -debtor -petitioner. The facts of the case giving rise to this review petition may be summarised thus.

(2.) ON May 10, 1956, the decree -holder Champalal obtained a decree for recovery of certain amount against the judgment -debtor -petitioner Narain Das. On May 22, 1968, third execution application was moved for the recovery of the balance amount of Rs. 9,588/ -. An immovable property situated in the town of Sangaria belonging to the judgment -debtor was attached. It was put to auction sale. Permission was granted to the decree -holder under Order 21 Rule 72, C.P.C. to take part in the bid. His bid, being highest, was accepted. The judgment -debtor -petitioner moved an objection petition under Order 21 Rule 90, C.P.C. for setting aside the sale on various grounds. After taking reply of the decree -holder and recording the evidence of the parties, the executing court (Civil Judge, Hanumangarh) rejected the objection petition. His appeal was dismissed by the learned District Judge, Sri Ganganagar on May 13, 1974 and his second appeal was dismissed by Hon'ble Mr. Justice S.S. Vyas on August 4, 1987.

(3.) IN reply, it has been contended by the learned Counsel for the non -petitioners (the heirs of decree -holder late Champalal) that the auction in the court premises was permissible and no fresh proclamation was required to be issued if the auction was held within 7 days of the dates notified in the sale proclamation. He further contended that these objections have been raised for the first time after 20 years and the judgment under review cannot be set aside on this ground. He also contended that the review petition cannot be allowed by another judge even if he takes another view of the matter. He relied upon Davarqju Pillat v. Sellayya Pillai : AIR1987SC1160 . He also contended that the deposit of Rs. 9,885/ - by the judgment -debtor was not within limitation and as such auction sale could not be set aside. He relied upon P.K. Unni v. Ninnala Industries : [1990]1SCR687 . He lastly contended that the said objections cannot now be permitted to be raised in the review petition as they were not taken before the executing court, first appellate court and also before this Court in second appeal. He relied upon Smt. Pushpa v. Ganpat Singh .