The main legal point established in the judgment is that the protection from attachment and sale of residential houses does not extend to properties specifically charged with the debt sought to be recovered, and the burden of proof is on the judgment debtor to prove the occupation of the residential house.

M.M. Kumar, J. - This revision petition is directed against the order dated 16.3.2002 passed by the Civil Judge (Junior Division), Sunam dismissing the objections of the petitioner to the sale conducted on 28.1.2002.

2. Brief facts of the case are that judgment and decree dated 20.2.2001 was passed in Civil Suit No. 83 dated 16.4.2002 decreeing the suit for a total sum of Rs. 3,98,142/-. The decree holder-respondent filed an application seeking execution of the decree. It is during the execution proceedings that attachment orders were issued and the petitioner filed objections under Order 21 Rule 66 of the Code of Civil Procedure, 1908 (for brevity the Code) which were dismissed. Thereafter the attached property was put to auction. Warrants directing sale of the property were received back unexecuted with the report that no one was ready to bid for the property. Thereafter, the bank filed an application under Order 21 Rule 12 of the Code seeking permission of the Court to itself bid at the auction. However, for the reasons best known to the decree holder, the application was withdrawn and the warrants directing sale of the property were issued again. Sale was conducted on 28.1.2002 to which the JD-petitioner filed objection. The decree holder, however, pleaded for confirming the sale of the land. As per auction proceedings, the attached land of the JD-petitioner measuring 12 kanals 19 marlas were sold for Rs. 3,20,000/- and the auction purchaser deposited on the spot a sum of Rs. 80,000/- i.e. 1/4th of the total amount. The balance 3/4th of the amount was deposited in the Court on 31.2.2002 i.e. within the prescribed period of 15 days as provided by Order 21 Rule 85 of the Code. The executing Court while dismissing the objection of the JD-petitioner held as under :

"The withdrawal of application under Order 21 Rule 72 CPC filed by D.H. does not vitiate the proceedings. Learned counsel for JD failed to show as to how these facts effect, the auction conducted as per law.

The JD has taken further objection that there was no publication as provided. However, perusal of sale warrants show that munadi was duly effected in the village and thereafter auction was conducted as per rules. Learned counsel for JD failed to point out any infirmity in this regard. Perusal of auction proceedings show that the details of auction proceedings have been given and names of the persons who bid at the auction is also given in the attached list. The names of father of those persons and residences are also given. There is no bar to bid at the auction by the persons resident out of the village. The JD has further pleaded that rate of land is more than Rs. 4 lacs per killa. The D.H. on the other hand has placed on file certified copy sale deed dated 2.6.99 executed by JD Sher Singh whereby he has sold his land at the rate of Rs. 1-1/2 lac per Killa. JD has further take objection that his residential house is constructed in the disputed land and he has also installed electric motor. However, there is no evidence in this regard. No bill or pass book of electricity or any other process regarding the existence of house has been procured. Moreover, the JD had taken the objection to the application under Order 21 Rule 66 CPC but he did not took such objection, at that time. It shows that he has taken these objections only to avoid auction proceedings.

From these facts and my above discussion, the JD has failed to raise any valid objection to the auction proceedings. Learned counsel for D.H. has also cited 2000(2) CCC Karnataka 184, Rana Enterprises, Bangalore and others v. State Bank of Mysore, where it has been held that if JD alleges material irregularity or fraud in conducting the sale, the burden of proof is on JD to show that substantial injury resulted due to irregularities and fraud failure to do so, will entail dismissal of the application for setting aside the auction. The ratio of this authority is also applicable to the facts of present cas