Auction sale--Setting aside of--Objection by legal heirs rejected on ground that they became owner of property on date of passing of decree whereas property was sold prior to that date--Not proper as inheritance was never in abeyance--Objections to be heard.

Vinod K. Sharma, J.:-The petitioners filed an application for setting aside the sale of New Walia Cold Store, Nakodar Road, Jalandhar (for short the Cold Store) which took place on 13.5.1988 to the extent of 2/3rd share. They were non suited and the appeal filed also stands dismissed.

2. The petitioners have impugned the order passed by the learned courts below by invoking revisional jurisdiction of this court.

3. The petitioners filed objections against the sale on the ground that litigation was going on regarding the ownership of the Cold Store and by way of judgment and decree dated 29.8.1988 this court in Regular Second Appeal was pleased to hold that the petitioners were entitled to 2/3rd share in the Cold Store and rest of 1/3rd share was held to be under the ownership of Harbans Kaur.

4. The decree holder Pritam Singh succeeded in getting a money decree for a sum of Rs.10,000/-. He sought the execution of the decree and to satisfy the said decree the Cold Store was ordered to be auctioned on 13.5.1988.

5. The petitioners claimed that the auction was illegal and further that as there was no money decree against the objector/petitioners being owners of 2/3rd share the sale has affected the rights of the present petitioners and thus, the same was liable to be set aside under Order 21 Rule 90 of the Code of Civil Procedure (for short the Code). It was claimed that the sale be declared invalid and void.

6. The application was opposed by the auction purchaser on the plea that the objections were time bared. It was claimed that it was within the knowledge of Charan Singh, attorney of Neera that the sale had taken place and since there was no fraud or irregularity in conducting the sale the same was not liable to be set aside. The auction purchaser being highest bidder deposited the amount in the court and thus, it was claimed that the objections be dismissed.

7. Learned executing court framed issues arising out of the pleadings and and after the contest objections were dismissed.

8. Learned court below has been pleased to dismiss the objections filed by the petitioners by holding that the petitioners became owners on 29.9.1988 i.e. on the date of passing of the judgment and decree by this court in the regular second appeal whereas property was sold prior to that date i.e. 13.5.1988.

9. The learned courts also observed that prior to the passing of the judgment and decree passed by this court Gurdev Singh, Har Kaur and Amarjit Kaur considered themselves as owners of the Cold Store and filed objections under Order 21 Rule 58 read with section 151 of the Code and the said objections were dismissed and Cold Store was put to auction. The plea of the petitioners that Mannu was minor at the time of auction and no proper procedure was followed was also rejected by observing that the petitioner Mannu had no right to the property on 13.5.1988. Thus, dismissed the objection petition.

10. Findings of the learned courts below cannot be sustained. It is well settled law that the courts only interpret rights of the parties and by way of judgment and decree passed by this court entitlement to inherit 2/3rd share by the petitioners would relate back to the date of death of original owner as succession never remains in abeyance and therefore, the courts below were not right in holding that the petitioners did not have right of ownership in the property on 13.5.1988 when the auction was conducted.

11. Mr. Ashok Aggarwal, learned senior counsel appearing on behalf of the petitioners has also challenged the sale to be in violation of Order 21 Rule 66 (2) and 54 (1) (a) of the Code on the plea that service of notice on the judgment debtor is mandatory and in the absence of notice sale would be nullity. It is also the contention of the learned senior counsel that in the present case for execution of a decree of Rs.10,000/- whole of cold storage has been ordered to be sold and thus, provisions of Order 21 Rule 66 of the Code stands violated wh