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High Court Of Delhi
AMOLAK SINGH JAIN - Appellant
Versus
SATYAWATI - Respondent
Execution 365 of 1977
Decided On : 03/21/1979
AUCTION SALE - VOIDABILITY - NOTICE UNDER ORDER 21, RULE 66(2) OF THE CODE OF CIVIL PROCEDURE - INTERPRETATION - SUBSTANTIAL INJURY - PLEADINGS - PARTICULARS - FRAUD - IRREGULARITY - PUBLICATION OF PROCLAMATION OF SALE - ORDER 21, RULE 90 OF THE CODE OF CIVIL PROCEDURE - LIMITATION - OBJECTIONS TO SALE - TIME LIMIT - SECTION 47 AND 151 OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY.
Fact of the Case:
Judgment debtors challenged the auction sale of their property on the grounds that no notice under Order 21, Rule 66(2) of the Code of Civil Procedure was issued, that the sale was conducted fraudulently, and that the property was sold for a price substantially lower than its market value.
Finding of the Court:
1. The court held that the issue of notice under Order 21, Rule 66(2) of the Code of Civil Procedure is not mandatory and its non-issuance only renders the subsequent sale voidable at the instance of the judgment debtor. 2. The court found that the judgment debtors were aware of the execution proceedings and had ample opportunity to object to the sale but failed to do so. 3. The court held that the judgment debtors failed to plead and prove any substantial injury or irregularity in the publication or conduct of the sale. 4. The court also held that the objections to the sale were barred by limitation as they were filed more than 60 days from the date of sale.
Issues: 1. Whether the sale was void due to the non-issuance of notice under Order 21, Rule 66(2) of the Code of Civil Procedure? 2. Whether the sale was liable to be set aside due to fraud or irregularity in its publication or conduct? 3. Whether the objections to the sale were filed within the prescribed time limit?
Ratio Decidendi: 1. The court interpreted Order 21, Rule 66(2) of the Code of Civil Procedure and held that the issue of notice to the decree-holder and the judgment-debtors before drawing up the proclamation of sale is not mandatory. 2. The court held that the judgment debtors' failure to object to the sale despite being aware of the execution proceedings and having ample opportunity to do so amounted to a waiver of their right to challenge the sale. 3. The court held that the judgment debtors failed to plead and prove any substantial injury or irregularity in the publication or conduct of the sale, as required under Order 21, Rule 90 of the Code of Civil Procedure. 4. The court held that the objections to the sale were barred by limitation as they were filed more than 60 days from the date of sale.
Final Decision: The court dismissed the judgment debtors' objections to the sale and upheld the sale.
( 1 ) THESE are applications to set aside sale of 51/100th share of property at No. 1, Purana Quila Road, New Delhi auctioned on 26th September, 1977 for Rs. 4,55,000 in favour of Delhi Sikh Gurdwara Management Committee, Delhi. On 24th April 1973, a money decree for Rs. one lac with interest at 12 per cent per annum from the date of payment of this amount i. e. 25th June, 1962 till the date of decree and future interest at 6 per cent per annum from the date of decree till realisation and costs of suit Rs. 4,101. 95 p. was passed in suit No. 99 of 1966. Defendant No. 1 was to pay Rupees 40,000 with interest, defendants 4a and 4b and defendants 1 to 3, 6 to 12 as legal representatives of defendant Smt. Kirpa Devi were to pay a sum of Rupees 20,000 with interest from the property of the deceased, and defendants 8 and 9 as well as defendants 6 to 9 as legal representatives of defendant No. 5 deceased were to pay a sum of Rs. 40,000 with interest to the plaintiff. On 2nd August, 1973 execution No. 63 of 1973 was filed for the recovery of the decretal amount by attachment and sale of the said property at 1, Purana Quila Road, New Delhi, by attachment under Order 21, Rule 46 of the Code of Civil Procedure, an amount of Rs. 32,000 due to Rani Kirpa Devi lying in deposit with the Managing Committee of Guru Harkishan Public School New Delhi and also by attachment of Rs. 3,000 per month out of rent falling due to the judgment-debtors on the first of every month from the managing committee of Guru Harkishan Public School. By order dated 23rd August, 1973 the Managing Committee of said School was prohibited from making payment of the amount due to late Rani Kirpa Devi or to any of her legal representatives. The Managing Committee of the said School accordingly deposited Rs. 35,434. 81 and the same was ordered to be paid to the decree-holder as per Order dated 5th Februrary, 1974. This amount is stated to have been paid to the decree-holder. Judgment-debtors by order dated 5th February, 1974 were restained from recovering rent from the School and the Managing Committee of the said School was directed to deposit Rs. 2,700 out of rent becoming due to judgment-debtors every month in this court.
( 2 ) THE share of the judgment-debtors in the property was stated to be 51/100. Accordingly by order dated 25th September, 1975, 51/100th share in the said property was ordered to be attached. The order prohibiting the judgment-debtors from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge was not served for a sufficiently long time and therefore by order dated 4th January, 1977 the said prohibitory order was directed to be served by publication which was published in the daily issue of indian Express dated 29th April, 1977. The judgment-debtors by this notice were also directed to appear in court on 9th May, 1977 at 10-30 A. M. Bawa S. C. Singh, Advocate was appearing in these proceedings as counsel for the judgment-debtors. S. Mohd. Anis, Advocate appeared for counsel for the judgment-debtors on 9th May, 1977 and judgment-debtors were granted time to file objections till 19th July, 1977 on which date the counsel for judgment- debtors again prayed for a week s time to file objections, which was granted but objections were not filed. On 19th July, 1977 counsel for the decree-holder in the presence of counsel for the judgment-debtors also filed an application (EA 213/77) under Order 21, Rule 66 of the Code of Civil Procedure which was ordered to be placed on 29th July for appropriate orders. On 29th July, 1977 the execution case was directed to be placed before the Court on 14th August, 1977 for sale order. On 14th August, 1977 in the presence of counsel for the decree-holder and Mr. Ashok Aggarwal, Advocate for counsel for the judgment-debtors, the Court directed issue of warrant of sale as well as proclamation of sale. The sale was fixed for 26th September, 1977. The de
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