JUDGMENT :

1. Rule. With the consent of the parties, rule made returnable forthwith and heard finally.

2. By this petition, the Petitioners impugns the order below Exh.38 dated 13th September, 2022 passed in ARD No.284 of 2019. A perusal of prayer clause shows that the substantial prayer pertains to the quashing of the order below Exh.38 dated 13th September, 2022, however, the prayer clause “C” seeking interim relief seeks stay of the order below Exh.42 dated 25th November, 2022, in addition to the order passed below Exh.38 dated 13th September, 2022.

3. By the impugned order dated 13th September, 2022, the application filed by the decree-holder for preparing schedule of the place, date and time of proclamation of sale to be published in the daily Lokmat for sale of the property by public auction was allowed. Whereas, by the order passed below Exh.42 dated 25th November, 2022, the draft of the proclamation of sale of the attached/mortgaged property was approved and the auction sale was fixed at the location of the mortgaged/attached property on 15th December, 2022 at 11:00 a.m. Although, the substantial prayer does not impugn the order passed below Exh.42 dated 25th November, 2022, this Court has considered the validity of both the orders.

4. Shorn of unnecessary details the facts are as under:

The Petitioner No.1 had obtained the loan of Rs.40 lakhs from the Respondent No.1-Company in the year 2016 and as a security for the said loan two mortgage deeds were executed in respect of plot No.1 admeasuring 354.75 sqr.mtrs. bearing land Survey No.31/1+2/1/4/1/5 Mauje Takli Parcha, Tq. Chalisgaon, District Jalgaon, partly owned and possessed by Petitioner No.2 to the extent of 168.87 sq.mtr., and Petitioner No.3 to the extent of 185.87 sq.mtrs.

The Petitioners could repay a sum of Rs.8,72,000/- and as there was a default in the repayment of the balance amount of the loan, the Respondent No.1 initiated arbitration proceedings wherein an arbitration award for sum of Rs15,93,000/- was passed in favour of the company by award dated 14th April, 2018. Respondent-decree-holder filed an execution application bearing ARD No.284 of 2019 before the learned Civil Judge, Senior Division, Chalisgaon for execution of the award. On 13th September, 2022, an application below Exh.38 came to be filed by the Respondent No.1-decree-holder stating that the court had passed an order permitting the sale and that for publishing the same in the local newspapers it is necessary to settle the details of the sale and other particulars. By order dated 13th September, 2022 passed below Exh.38, the Executing Court issued a notice directing to the petitioners to attend the Court on the next date at 11:00 a.m. and take notice to the date fixed for setting terms fixed of the sale in accordance with the Order XXI Rule 54(1) of the Code of Civil Procedure, 1908 (for short, “the Code”). By the said order, the Executing Court directed the issuance of notice to the judgment-debtor and decree holder under Order XXI Rule 66(2) of the Code. Subsequent thereto, an application was filed on 17th November, 2022, below Exh.42 by the Respondent No.1-decree holder submitting draft of the proclamation of the sale. The application was resisted by the petitioner-judgment- debtor on various grounds that the copy of the application was not served upon the judgment- debtor, the application is not supported by an affidavit and is not legal. An objection was also raised that due to pendency of Petition preferred by the Petitioner No.2 against the order of the Executing Court before this Court in which the notices have been issued to the Respondents, the application of the decree holder cannot be considered.

5. After hearing the counsel for both the parties at length, the Executing Court allowed the application and approved the draft of proclamation of sale and fixed the schedule of the place and the time on 15th December, 2022 at 11:00 a.m. also directed the publication in two local Marathi news