RADHA DEVI Vs. JORAWAR SINGH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment pas -red by the learned Additional District Judge, Bhilwara dated 17 -5 -1978. Briefly stated the facts of the case giving rise to this appeal are that in a decree passed in favour of respondent Jorawar Singh against Smt. Radhadevi, the decree -holder filed an execution petition under Section 47 read with Order XXI Rule 90 CPC Smt. Radha Devi in that execution proceedings filed objection petition to the effect that the land being beyond urban area is not liable to be attached That petition was dismissed by the Executing Court and being aggrieved by that order Radha Devi find an appeal in the Court and that appeal having been accepted the case was remanded to the District Court with the directions that the nine issues framed by this Court may be decided after giving opportunity to the parties to adduce evidence for the fame The Additional District Judge, Bhilwara examined the witnesses produced by the parties and deciding various issues rejected the objection petitions of Smt. Radha Devi and passed the judgment under appeal.

(2.) THE learned Counsel for the appellant has assailed the findings of the learned Additional District Judge on three grounds The first ground raised is, that while deciding issue No 4 the learned Additional District Judge has arrived at a conclusion that the auction bid was adjourned for more than 4 days, still he in contravention of the settled position of law, that an adjournment of the auction for more than seven days cannot be done without a fresh proclamation unless waived by the judgment -debtor, held the auction valid.

(3.) THE perusal of the record shows that while deciding issue No. 2 the learned Additional District Judge has stated all the dates on which the auction took place and calculating the time arrived at a conclusion that the adjournment was of course for more than 7 days but he in lieu of the provision of Rule 90 of Order XXI decided that no substantial injury has been earned to the judgment -debtor by this adjournment and therefore, he on this ground alone and in my opinion correctly, did not consider it a fit case in which the sale may be set aside. I am strengthened in my opinion by the principle enunciated in the case of Maliram Nemichund Jain v. Rajasthan Financial Corpn. 1974 RLW 94. In that case reliance has been placed on the observations of their Lordships of the Supreme Come in the case of Radhey Shy am Singh v. Shram Bhari Singh : [1971]1SCR783 . In the Supreme Court case it has been observed as under: Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words, injury, is, therefores not sufficient. What has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity of fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity. In view of this position of law the finding of the learned Additional District Judge on that point that this irregularity in adjourning the auction for more than seven days will not nuke the sale liable to be set aside is not to be interfered with.