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High Court Of Delhi
SHALIMAR CINEMA - Appellant
Versus
BHASIN FILM CORPORATION - Respondent
Election 1 of 1983
Decided On : 09/26/1984
AUCTION SALE - SETTING ASIDE - MATERIAL IRREGULARITY - OMISSION TO GIVE NOTICE TO JUDGMENT-DEBTOR UNDER ORDER 21 RULE 66(2) CIVIL PROCEDURE CODE - WHETHER A MATERIAL IRREGULARITY - WHETHER SALE LIABLE TO BE SET ASIDE - HELD, NO.
Fact of the Case:
The judgment debtors filed an application under Order 21 Rule 90 read with Section 151 of the Code of Civil Procedure for setting aside the auction sale of their 28/48 shares in Shalimar Cinema, Bhogal, New Delhi, in execution of a decree for Rs. 1,44,973. The judgment debtors contended that the sale was liable to be set aside on the grounds of material irregularities, fraud in publishing and conducting the sale and on the grounds taken in the objection petition. The trial court dismissed the application and confirmed the auction sale in favor of the auction purchaser.
Finding of the Court:
The court held that the omission to give notice to the judgment-debtor under Order 21 Rule 66(2) Civil Procedure Code was only an irregularity and not a nullity. The court further held that the price fetched by the auction sale was not inadequate and that there was no co-relation or link between the material irregularity and injury.
Issues: 1. Whether the omission to give notice to the judgment-debtor under Order 21 Rule 66(2) Civil Procedure Code was a material irregularity? 2. Whether the sale was liable to be set aside on the grounds of material irregularities, fraud in publishing and conducting the sale and on the grounds taken in the objection petition?
Ratio Decidendi: 1. The court held that the omission to give notice to the judgment-debtor under Order 21 Rule 66(2) Civil Procedure Code was only an irregularity and not a nullity. The court relied on the Supreme Court decision in Dhirendra Nath Gorai and others v. Sudhir Chandra Ghosh and others AIR 1964 Supreme Court 1300, wherein it was held that an objection that the sale proclamation did not conform to Section 35 of the Bengal Money Lenders Act could not avail a judgment-debtor in an application under Order 21 Rule 90 Civil Procedure Code, if he was present at the drawing up of the sale proclamation and did not raise any such objection at time nor could it avail a judgment-debtor who after receiving notice did not attend at the drawing up of the sale proclamation at all. 2. The court held that the price fetched by the auction sale was not inadequate. The court relied on the Supreme Court decision in Uma Datt v. R. K. Sardana and another AIR 1970 Delhi 56, wherein it was held that the violation on the part of the court regarding the provisions of Order 21 Rules 66 and 67 read with Rule 54 of Civil Procedure Code were mere irregularities, which in order to enable the judgment-debtor to avoid the sale, must lead to substantial injury. 3. The court held that there was no co-relation or link between the material irregularity and injury. The court relied on the Supreme Court decision in M/s Kayjay Industries (P) Ltd. v. M/s Aanow Drums (P) Ltd. and others AIR 1974 SC 1331, wherein it was held that even though there should be a link between the material irregularity and substantial injury as provided in Order 21 Rule 90, nevertheless when the price fetched in auction sale is substantially inadequate, there is the presence of both the elements of irregularity and injury.
Final Decision: The appeal was dismissed leaving, however, the parties to bear their own costs.
( 1 ) THIS EFA (OS) has arisen out of and is directed againt the order dated 10-1-1983 passed by G. R. Lirthra J. whereby the application under Order 21 Rule 90 read with Sec. 151 of the Code of Cvil Procedure (hereinafter to be referred to as Civil Procedure Code.) for setting aside the auction sale held on 1-9-1977 of 28/48 shares of the Judgment-debtors Shamiudin and Nasimudin in an immovable property known as "shalimar Corporation and another cinema, Bhogal, New Delhi", in execution of a decree for Rs. 1,44,973. 00 passed in favour of decree-holder M/s bhasin Film Corporation against Shamiudin and Nasimudin. each of the above-mentioned judgment-debtors held 14/28 shares in the Shalimar Cinema.
( 2 ) THE objections contained in the applicalion under Order 21 Rule 90 Civil Procedure Code were resisted both by the decree-holder as well as the auction-purchaser M/s Malhotra Brothersexhibitors (P) Limited.
( 3 ) THE following issues were framed by thelearned. Single Judge on April 17, 1979:-
1. Whether objections under Order 21 Rule 90 of the Code of Civil Procedure are maintainable in respert of the properties mentioned in the objection. s ? OPJD. 2. Whether the objectors arc estopped to raise any objection in view of their conduct in rhe proccending ? OPDH. 3. Whether the sale is liable to be set aside on the grounds of material irregularities fraud in publishing and conducting the sale and on the grounds taken in UK. objection-petition ? OPJD. 4. Relief.
( 4 ) THE perusal of the order under appeal shows that issues No. I and 2 were not pressed at the time of arguments before the learned Single Judge by the decree-holder and the ouction purchaser with, the result the same were decided in favour of the judgment-debtors by the learned Single Judge who. however. deccided issue no. 3 against the judgment-debtors and ultimately the objection-petition of the judgment-debtors was dismissed with costs and the auction sale in question was confirmed in favour of the auction-purchaser Mis Malhotra Brothers Exhibitors (I*) Limited.
( 5 ) A number of objections and contentions were raised by the learned counsel for the judgment-debtors challenging the validity and correctness of the aforesaid impugned order dated 10-1-83. First of all it was urged that no notice as required under Order 21 Rule 66 Civil Procedure Code was given to or served upon the Judgment-debtors prior to the sale in question and such a notice being mandatory and fundamental in nature and going to the root of the matter and thus affecting the jurisdiction of the executting court holding the sale, the sale was rendered nullity on account of this omission which was not a mere irregularity to be dealt with underorder 21 Rule 90 Civil Procedure Code and in support of this contention the learned counsel relied upon some authorities and the same are Narayan Purshottam Bansod Vs Ramchandra Mudgiliji Choudharkar and others AIR 1948 Nagpur 177 Dada- narayan Thakre v. Jaichand Nagora and another AIP 1958 Bombay 278; Balwant Raj Kumar v. Smt. Attmt Kaur AIR 1961 Punjab 495; Dr. Chenan v. P. Ramasami Naidu and others 1980 (II) MLJ 170 (at p. 171) and Mannern Peda Narisi Reddi v. Maddivenkayya and ors. AIR 1977 Andhra Pradesh 234. Narayan Purshottam s case (supra) was the basic authority which was relied upon in Dadanarayan Thakre s case (supra) which in turn was relied upon in Balwant Raj Kumar s case (supra ). On the other hand, the learned counsel for the section purchaser placed reliance on Uma Datt v. R. K. Sardana and another AIR 1970 Delhi 56; Sri Raja Bommadevara Nagana Naidu Bahadur Zamindar Garu v. Sri Raja Bommadevara Venkatravulu Naidu Bahadur Zamindar Garu and another AIR 1945 Privy Council 178 and Dhirendra Nath Gorai and others v. Sudhir Chandra Ghosh and others AIR 1964 Supreme Court 1300. The most important authority which clinches the matter on this point against the judgment-debtors? objectors is furnished by Dhirendra Nath Gorai s case (supra) i
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