JUDGMENT

Manoj Kumar Ohri, J. (Oral)

CM.APPL No. 24079/2023 (Exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

FAO No.116/2023 & CM. APPL. No. 24080/2023

1. By way of present appeal filed under Order XLIII CPC, the appellant seeks to assail the order dated 11.04.2023 passed by the learned Trial Court in Execution Petition No.23555/2016 whereby the Objections filed by the appellant under Order XXI Rule 90 CPC challenging the sale of property, put up for auction pursuant to the order passed by the execution court below was dismissed.

2. The said Execution Petition was filed to execute judgment and decree dated 01.02.2012 passed in Civil Suit bearing No.41/2010. The decree passed was a money decree for a sum of Rs.6,25,000/alongwith 12 % interest w.e.f. 22.12.2010 till realization, the execution of which was sought. The record reveals that execution court ordered sale of property bearing Nos.707-708, Double Storey, New Rajinder Nagar, Delhi-110006 i.e., the property held by JD by way of an auction. A Court Auctioneer was appointed, who issued a sale proclamation dated 29.08.2022 laying down conditions for sale. The reserved price of the suit property was fixed at Rs.1,45,28,751.70. Auction was conducted on 09.09.2022.

3. Respondent No.2 was one of participants in the auction and turned out to be the highest bidder with the offer of Rs.2.80 crores-which is stated to be lying deposited in the Execution Petition. Sale Deed has yet not been executed in favour of the respondent No 2, apparently, due to Objections filed by the appellant, challenging the sale.

4. The auction proceedings came to be challenged by the appellant as well as one Jyoti Gupta under Order XXI Rule 90 CPC. Vide impugned order, both sets of the Objections were dismissed. While Jyoti Gupta has not challenged the impugned order, the appellant has preferred the present appeal.

5. Dr.Amit George, learned counsel for the appellant has alleged that the entire bidding process was fraught with illegality inasmuch as the appellant, who was represented through one Hitesh Garg, was not allowed to offer a bid, even though he was present at the site where the auction was being conducted. It is alleged that the auction began at about 1 PM, wherein bid as high as Rs.3.50 crores was made, before the auction proceedings were suspended due to a pandemonium that broke out among the bidders. It is alleged that the auction was never resumed.

6. The appellant has alleged that he became aware of respondent No.2 being declared as highest bidder on 22.09.2022, when the order dated 15.09.2022 passed by the Execution Court was uploaded on the court website.

7. It is contended that the auction could not be concluded as the auction was never resumed. It is submitted that the declaration of respondent No 2 as the successful bidder is an outcome of a conspiracy between the respondent No.2 and the Court Auctioneer. In support of the submission, reference is made to a transcript of an alleged audio recording of the auction proceedings made by Hitesh Garg, alongwith the appellant's certificate issued under Section 65B of the Indian Evidence Act.

8. Appellant has contended that, to show his bonafides, he is willing to offer a sale consideration that is 10% higher than the respondent No 2's bid. Additionally, the appellant has relied upon his bank statement to show availability of funds on the day when auction was conducted.

9. Ms.Deepika V. Marwaha, learned Senior Counsel appearing for respondent No.2 has vehemently opposed the present appeal. She has submitted that in the auction proceedings held on 09.09.2022, neither the appellant was present nor any bid was placed on his behalf.

She further submits that after filing Objections, the appellant has shifted his stand and substantially improved upon his case in the appeal as well as in the rejoinder filed in the present appeal. She would contend that averments made in the rejoinder for the first time, cannot be t