Proper notice and valuation of property under Order 21 Rule 66 CPC are essential for the validity of auction proceedings, and the executing court should not proceed with the sale of property in haste, especially when there is an application for stay of execution proceedings.

Hemant Gupta, J.

1. Present revision petition is directed against the order passed by the executing court dismissing the objections filed by the petitioner under the provisions of Order 21 Rule 90 of the Code of Civil Procedure objecting to the sale of 44 kanal 11 marla of land sold in court auction on 3.11.1990. At the outset, the counsel for the petitioner submitted that this petition be treated as one under Article 227 of the Constitution of India. I order accordingly.

2. An exparte money decree in the sum of Rs. 1,03,396/- was passed on 1.2.1990. The respondent decree holder filed an application for execution of the said decree on 2.3.1990. On execution application having been filed, the learned executing court issued warrants of attachment for 15.4.1990. On 16.4.1990, the court has ordered that the attachment has been effected.

3. After attachment, the decree holder moved an application under Order 21 Rule 66 CPC for settling the terms of proclamation of sale. Notice of the said application was issued for 18.9.1990. The petitioner is purported to have refused the service of such notice on 27.8.1990. Order dated 18.9.1990 shows that the learned trial court has proceeded to settle the terms for proclamation of sale in the absence of judgment debtor as it was reported that he has refused service and affixation has been made.

4. The court ordered the sale to be effected on 3.11.1990. The auction was conducted on 3.11.1990 wherein brother of the partner of the plaintiff firm was the successful purchaser of the land measuring 44 kanal 11 marla for a sum of Rs. 1,21,000/-. The petitioner moved an application for stay of the execution of the decree in proceedings for setting aside of exparte decree and also filed objections on 19.11.1990. The such objections have been dismissed by the executing court. The appeal has also been dismissed. Aggrieved against such orders, the petitioner has filed the present revision petition.

5. The petitioner has filed objections, interalia, on the grounds that he has not received any notice under Order 21 Rule 66 CPC and that the land has been auction in favour of Gurcharan Singh for Rs. 1,21,000/- though the price of the land was Rs. 8 lacs. It has been further mentioned that no auction was conducted at the spot. The plaintiff and Gurcharan Singh have been working in the same business. Auction is conducted in the presence of six persons but none of them belong to village Deviwala where the land is situated. All the six persons are near and dears of the partners of the decree holder firm. There is no detail furnished on the warrants of auction order. No munadi was ever conducted before land in question was auctioned.

6. The decree holder filed reply. He has submitted that on 27.8.1990, the judgment debtor was present in court and his statement was recorded for setting aside exparte decree but he refused to accept notice under Order 21 Rule 66, therefore, he was proceeded against exparte. The other allegations of the judgment debtor were denied.

7. Learned executing court framed issue "where sale dated 3.11.1990 is liable to be set aside on the ground mentioned in the application dated 19.11.1990?OP Objector". In support of objections, the objector appeared as OW2 and produced Bachan Singh OW1 and Sat Narain as OW3. Decree holder examined few other witnesses. OW1 has stated that his land is adjacent to the land of the JD. No Kanungo or Tehsildar ever visited village Deviwala. There were on auction proceedings at the site in dispute. On the other hand Samp Singh HW1 was Tehsildar at the time of auction of the property. He is the one who conducted the auction proceedings. He showed his ignorance that the rate of land was Rs. 2 lac per kila. He deposed that the persons belonging to village Deviwala were identified by Patwari but no person from village Deviwala gave bid auction.

8. A perusal of the bid sheet DH2 would show that the five persons participated in the auction. The proclamation notic