KALU RAM Vs. SHAMBHOO SINGH

JUDGEMENT

(1.) THIS is a revision application by the judgment-debtor against an order of the executing Court refusing to set aside an auction sale on his application under order 21 Rule 90 Civil Procedure Code. The order was confirmed on appeal by the district Judge. The revision application has been contested on behalf of the decree-holder as well as the auction-purchaser.

(2.) A decree for Rs. 2,142. 87 plus Rs. 299. 50 by way of costs was passed in favour of the decree-holder on 8-2-60. The decree directed that the mortgaged ornaments would first be sold and appropriated towards the decretal amount and the decree shall thereafter be executed against the defendant for recovering the balance remaining due. The executing Court proceeded to execute the decree both by the sale of the mortgaged ornaments and by the attachment and sale of a house belonging to the judgment-debtor. So far as the ornaments are concerned, it was found that they were of spurious metal and were not worth more than Rs. 150/ -. The proceedings for the sale of the ornaments were thus given up and the court proceeded to sell the house of the judgment-debtor. The first objection taken before me is that the Court had no jurisdiction to proceed with the sale of the house before selling the ornaments as directed under the decree, I am unable to accept this contention. The judgment-debtor did not challenge either before the executing Court or the appellate Court that the mortgaged ornaments were not worth more than Rs. 150/ -. An appreciable part of the decretal amount could not be realised by the sale of the ornaments. As such the executing Court had jurisdiction to execute the decree by the sale of the house of the judgment-debtor without selling the spurious ornaments.

(3.) IN order to understand the other objections of the judgment-debtor it is necessary to state some more facts. After the house of the judgment-debtor had been attached in execution of the decree, the decree-holder filed an application on 16-5-60 as contemplated by Rule 66 (3) of Order 21 for an order for sale. In this application it was mentioned that the house was subject to a usufructuary mortgage for Rs. 2,499/-and the equity of redemption was worth about Rs. 200/ -. Notice under Order 21 Rule 66 Civil Procedure Code was issued to the judgment-debtor intimating to him that the sale proclamation shall be drawn up in Court on 13-8-60. This notice was served personally on the judgment-debtor. He appended the date 13-8-60 against his signatures. That was probably done to acknowledge the fact that he had received intimation about some proceeding which was to be conducted on 13-8-60. The report of the process-server as well as the affidavit of service which was sworn before the Nazir go to show that the process was returned after service on 12-8-60. On 13-8-60 the judgment-debtor did not appear before the executing Court. It was ordered that a sale proclamation be issued as soon as process-fee etc. , was filed. The sale proclamation was signed by the executing Court on 24-8-60.