The main legal point established is that an auction sale can be set aside if there are substantial irregularities and fraud, and the application to set aside the sale was filed within the limitation period from the date of dispossession.

JUDGMENT :

1. Heard learned counsel for the parties.

2. This Miscellaneous Appeal has been filed for setting aside the order dated 14.01.2016 passed by learned Sub-Judge-VI, Chapra in Misc. Case No.04 of 2006 whereby and whereunder the learned Sub-Judge-VI has allowed the Misc. Case filed under Order XXXI Rule 90 and Section 47 of the Code of Civil Procedure. By the impugned order the learned court below has been pleased to set aside the auction sale held in Execution Case No.2 of 2001 on 17.12.2002.

3. A perusal of the impugned order would show that this case has a chequered history. One Bhukhal Upadhyay was a contractor of Building Construction Department. For certain works done by him for the Department he claimed a sum of Rs.3,15,714/-as outstanding amount. In terms of the arbitration clause present in the agreement an arbitration proceeding was conducted and the award of the arbitrator was filed in the court in accordance with Section 14 of the Arbitration Act, 1940. The arbitration award was made rule of the court. In the first round of battle, the State of Bihar challenged the judgment of the learned court below making the award a rule of the court and succeeded in getting the matter remanded to the court for considering the objection of the State. On remand, the objection of the State was considered but once again the learned court below made the award a rule of court. In this manner, the court granted a decree in favour of the contractor Bhukhal Upadhyay for a sum of Rs.3,15,714/-. He filed an Execution Case No.2/2001 and in the said execution case, in order to satisfy the decree all the buildings of the Department i.e. office of the Executive Engineer, residence of Superintending Engineer, Technical Adviser, Executive Engineer and Driver have been auction sold for Rs.17,04,161/-.

4. The auction sale was given effect to by way of delivery of possession which was confirmed twice on 16.05.2003 and 16.07.2004. Under these circumstances, the present application for setting aside the auction sale was filed under Order XXXI Rule 90 read with Section 47 and 151 of the Code of Civil Procedure.

5. After consideration of the materials available on the record, the learned court below framed the following issues:-

“I. Whether this misc. case is maintainable?

II. Have the petitioners got valid cause of action for this case?

III. Whether the case is barred by law of limitation and estoppel and res judicata?

IV. Whether the auction sale is fraudulent, irregular, arbitrary, void and without jurisdiction and wroth to set aside?”

6. Evidences were laid on behalf of the parties and thereafter the learned court below examined those evidences and answered the issues particularly the issue no.IV in which after holding that the opposite party had obtained the decree by throwing dust into the eyes of the court, the court having noticed that the decree was still in existence proceeded to consider as to whether the procedure adopted in satisfaction of the decree has been followed as per law or not and whether material irregularity and fraud has been committed in conducting the auction sale or not? While deciding Issue No.4, the learned court has inter-alia recorded the following findings:-

“Now on this point the learned counsel on behalf of the petitioner has submitted that the material irregularity and fraud has been committed in conducting the auction sale. No attachment at the spot had been done, No proclamation of sale was done at the spot, no beating of drum had been taken place. The peon was taken in collusion and he did all the processes in collusion of the applicant. That the summons of the attachment and the auction sale was not properly served and were done Bala-Bala. The value of auction sale property was not properly ascertained and the value given in proclamation of sale was wrong. The process of auction sale was kept in dark and as such the people could not show about the auction and the bidder could not reach at the spot. No bidder was pr