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2015 Supreme(P&H) 597
PUNJAB & HARYANA HIGH COURT
Gurmeet Singh Sandhawalia, J.
Vinod Kumar and Ors. - Appellant
Versus
Darbara Singh (D) and Ors. - Respondent
C.R. No. 2965 of 2004 (O & M)
Decided On : 10-04-2015
For the Petitioner:Animesh Sharma, Advocate.
For the Respondents:J.S. Toor, Advocate.
The main legal point established in the judgment is the importance of adhering to the mandatory procedural requirements under Order 21 of the CPC, including the duty of the Court to sell only such property or a portion thereof as necessary to satisfy the decree, and the requirement to issue notice and give an opportunity to the judgment debtor to clear off the dues.
Headnote:
Revision Petition - Setting aside ex-parte orders under Order 21 Rule 66 CPC - Summary of Acts and Sections: Order 21 Rule 66, Order 21 Rule 54(1A), Order 21 Rule 54, Order 21 Rule 64, Order 21 Rule 89, Order 21 Rule 99 - The court discussed the mandatory provisions of Order 21 Rule 66(2)(a) CPC, Order 21 Rule 64 CPC, and Order 21 Rule 89 CPC, and their interpretations. The court emphasized the duty of the Court to sell only such property or a portion thereof as necessary to satisfy the decree, and the requirement to issue notice and give an opportunity to the judgment debtor to clear off the dues. The court also highlighted the importance of proper service and notice under the provisions of Order 21 Rule 54(1A) and (2) CPC, and the need for satisfaction of the Court before ordering substituted service.
Fact of the Case:
The suit for specific performance was filed by respondent No. 2-deceased Piara Singh for performance of the contract of sale. The petitioners challenged various ex-parte orders passed by the Executing Court, including auction proceedings and sale certificate, alleging irregularities and fraud in the execution proceedings.
Finding of the Court:
The court found that the ex parte proceedings, sale proceedings, and sale certificate were liable to be set aside due to violations of procedural requirements. The court held that the auction sale was illegal and without jurisdiction, emphasizing the duty of the Court to sell only such property or a portion thereof as necessary to satisfy the decree.
Issues: The issues included the liability to set aside ex-parte proceedings, the maintainability of execution proceedings against a dead person, and the maintainability of the application under Section 151 CPC.
Ratio Decidendi: The court emphasized the mandatory provisions of Order 21 Rule 66(2)(a) CPC, Order 21 Rule 64 CPC, and Order 21 Rule 89 CPC, and their interpretations. The court highlighted the duty of the Court to sell only such property or a portion thereof as necessary to satisfy the decree, and the requirement to issue notice and give an opportunity to the judgment debtor to clear off the dues. The court also emphasized the importance of proper service and notice under the provisions of Order 21 Rule 54(1A) and (2) CPC, and the need for satisfaction of the Court before ordering substituted service.
Final Decision: The revision petition was accepted, and the impugned orders, auction proceedings, and sale certificate were quashed. The sale in favor of the deceased-respondent No. 1 was set aside, and the parties were directed to appear before the Executing Court for further proceedings.
1. Challenge in the present revision petition filed under Article 227 read with Section 115 of the Constitution of India is for setting aside the various ex-parte orders passed by the Executing Court against the petitioners including the order dated 14.12.1994 (Annexure P-1) passed under the proceedings of Order 21 Rule 66 CPC. The auction proceedings conducted on 24.02.1995/02.03.1995 (Annexure P-2) and the orders confirming the sale on 19.08.1995 (Annexure P-3) alongwith the issuance of the sale certificate dated 30.09.1995 by the Additional Senior Sub Judge, Samana alongwith the order dated 23.03.2004 (Annexure P-5) whereby, the application under Section 151 CPC for setting aside of the ex parte proceedings was dismissed are also subject matter of challenge.
2. The suit for specific performance was filed by respondent No. 2-deceased Piara Singh, who was the tenant in the land, for performance of the contract of sale dated 25.12.1976 regarding 126 kanals 5 marlas against one Nanak Chand Khosla, Vinod Kumar, sons of Late Lala Bisheshar Parshad and Kaushalaya Devi, who was the widow of Lala Bisheshar Parshad. Petitioner No. 1 is son of Lala Bisheshar Parshad whereas petitioners No. 2 and 3 are daughters of Lala Bisheshar Parshad. The suit was decreed on 26.10.1982 only to the extent of refund of the earnest money of Rs.25,000/- by Sub Judge, Ist Class (Patiala). An appeal was filed and cross objections by the defendants against the judgment and decree was also dismissed on 02.06.1983 by the Additional District Judge, Patiala. Initially, execution application was filed in the year 1988 at Patiala, which was transferred to the Court at Samana in the year 1989 and was dismissed in default on 22.12.1990. In the meantime, Kaushalya Devi, mother of the present petitioners expired on 02.08.1991.
3. A second execution application was filed bearing No. 129 on 19.10.1991 without bringing the other legal representatives on record, in which notice was issued to the judgment debtors for 14.12.1991. Service was not effected upon them and on 09.06.1993, warrants of attachment were issued for 25.08.1993. Vide order dated 13.10.1993, the Executing Court noticed that attachment had been effected and issued notice under Order 21 Rule 66 CPC for 08.12.1993. Thereafter, on 20.08.1994, the Court being satisfied that the service could not be effected except through substituted mode, directed that service be effected upon the judgment debtors through munadi and affixation on deposit of munadi charges. On a subsequent date on 15.10.1994, it was noticed that the service had to be effected outside Samana Sub Division and, therefore, service was ordered to be effected through publication in Daily Ranjit newspaper, Patiala for 14.12.1994. Resultantly, ex parte proceedings were initiated on 14.12.1994 on account of non putting in appearance on behalf of the judgment debtors. The sale was fixed for 24.02.1995.
4. On the said date, the auction proceedings were conducted by Kanungo and Patwari in which 81 kanals and 1 marla of land were put to auction. Three persons namely Darbara Singh-respondent No. 1, Balwinder Singh and Gian Singh took part, which started from sum of Rs.27,800/- and was finalized at Rs.30,000/- in favour of respondent No. 1 who was none other than the brother of the decree holder-respondent No. 2, Piara Singh. A sum of Rs.7,500/- was deposited by him and he was directed to deposit the balance amount of Rs.22,500/- within 15 days. The said auction proceedings were forwarded to the Court of Additional Senior Sub Judge by the Tehsildar alongwith the amount. The sale was confirmed on 19.08.1995 keeping in view the deposit of the balance amount on 09.03.1995 since the decree holder made a statement that he has no objection if the sale was confirmed. The Court noticed that no application had been filed for setting aside the auction sale since no objections had been received, though it also noticed that a large chunk of
