The main legal point established in the judgment is that the provisions of Order 21 Rule 66 of the Code of Civil Procedure are mandatory in nature, and any attachment and auction of property must comply with these provisions.

Vinod K.Sharma, J.

1. This order shall dispose of Civil Revision No.2793 of 2010 and Civil Revision No.2961 of 2010 both titled "Harpreet Singh and another v. Gurnek Singh and others", as common questions of law and facts are involved.

2. For brevity sake, facts are being taken from Civil Revision No.2793 of 2010.

CM No.13407-CII of 2010

This application, under Order 1 Rule 10 of the Code of Civil Procedure, has been moved by applicant-Shiv Kumar son of Sh. Hari Chand, to be impleaded as respondent No.5. The applicant prays to be impleaded as party, on the ground that he is the auction purchaser, therefore, has interest in the property in dispute.

For the reasons stated in the application, CM is allowed, Shiv Kumar son of Sh. Hari Chand, resident of village and post office Kallar Hari, Tehsil and District Ambala, is ordered to be impleaded as respondent No.5 in this revision petition.

CR No.2793 of 2010

3. This revision petition is directed against the order vide which the learned Executing Court ordered the issuance of sale certificate and warrant of possession in favour of the respondent No.5. The respondent-decree-holder filed a suit for specific performance of agreement to sell against the petitioners-judgment debtors.

4. The learned Court did not grant decree of specific performance, but granted alternative relief of recovery of Rs.2,60,000/- (Rupees two lac and sixty thousand only) plus interest @ 12%. The objections filed by the judgment-debtors, to the execution of the decree, were dismissed on 12.4.2002. In execution of the decree, the entire property of the petitioners, was ordered to be auctioned wherein the share of decree-holder was 1/3rd of the total land. The learned Executing Court had initially attached l/3rd of the total property i.e. 86 kanals 18 marlas, which was held to be sufficient to meet the decretal amount.

5. The mother of the judgment-debtors Surinderjit Kaur filed objections, in the execution application, on the plea that she also had share in the property, which could not be auctioned, as she was not the judgment-debtor.

6. The objections were accepted, and the property of Surinderjit Kaur i.e. mother of the petitioners was released from the attachment. The learned Executing Court while releasing the share of Surinderjit Kaur ordered the sate of whole of the remaining property i.e. 2/3rd of 86 kanals 18 marlas.

7. The total claim of the decree-holder was only about 7.00 lacs (Rupees seven lac only) in two cases, whereas the total land belonging to the judgment-debtors i.e. petitioners was ordered to be sold for Rs.23.00 lac (Rupees twenty three lac only).

8. The petitioners challenged the auction. The other ground of challenge was, that the property was purchased by the relatives of the decree-holder, without permission of the Court, thereby the relief which was declined to the decree-holder was indirectly claimed by him through his relatives.

9. The learned Executing Court dismissed the objections. The order was challenged by the petitioners before the learned District Judge along with an application for stay of the operation of the impugned order. The learned appellate Court did not grant stay. Consequently the learned Executing Court, continued with the proceedings and issued sale certificate and warrant of possession in favour of respondent No.5.

10. Mr. Avnish Mittal, the learned counsel for the applicant auction purchaser, contested the revision petition on the ground, that no stay can be granted to the petitioners, at this stage, as applicant respondent No.5 was issued a sale certificate by learned Executing Court. It is further the case of the applicant-respondent No.5 that possession of the property was also given and mutation sanctioned.

11. On consideration, I find force in the contentions raised by the learned counsel for the petitioners. The undisputed facts referred to above show that the attachment and auction was void, on the face of it being violative of Order 21 Rule 66 o