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2018 Supreme(P&H) 1030
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
The Ludhiana Improvement Trust, Ludhiana – Appellant
Versus
Ujjagar Singh and others - Respondents
CR No.815 of 2016 (O&M)
Decided on : 06-03-2018
Advocate Appeared:
For the Appellant :Mr. Mukesh Chand Berry, Advocate
For the Respondent:Mr.M.L.Sarin, Sr. Advocate with Mr.Hemant Sarin, Advocate
The court emphasized the importance of the executing court applying its mind before ordering attachment and auction of property, and considered the substantial injury caused to the judgment debtor in setting aside the auction.
Headnote:
Attachment and Auction of Property - Town Improvement Act - Order 21 Rule 66 CPC - Order 21 Rule 90 CPC
Fact of the Case:
The Ludhiana Improvement Trust filed a revision petition challenging the order dismissing their objection petition regarding the execution of a decree. The property was auctioned for recovery of a sum, and the Trust objected to the auction and sought to set it aside.
Finding of the Court:
The court found that the executing court did not apply its mind before ordering attachment and sale of the property, and the auction resulted in substantial injury to the Trust. The court allowed the revision petition, set aside the previous orders, and directed the Trust to return the auction amount with interest.
Issues: The issues involved the irregularities in the attachment and auction of the property, the application of Order 21 Rule 90 CPC, and the substantial injury caused to the Trust.
Ratio Decidendi: The court held that the executing court failed to apply its mind before ordering the auction, and the auction resulted in substantial injury to the Trust. The court applied the twin conditions precedent for setting aside the sale and directed the Trust to return the auction amount with interest.
Final Decision: The revision petition was allowed, the previous orders were set aside, and the Trust was directed to return the auction amount with interest.
ANIL KSHETARPAL, J.
1. Ludhiana Improvement Trust-Judgment debtor has filed this revision petition under Article 227 of the Constitution of India, challenging the order dated 10.11.2012 passed by the learned executing court, dismissing their objection petition, confirmed in the appeal by the learned first appellate court, vide order dated 14.9.2015.
2. Although, execution petition has remained pending before the executing court for quite long and the parties on earlier occasions had come up to the High Court and even went up to the Hon’ble Supreme Court, however, mere delay in disposal of the case should not come in the way of the court to do justice between the parties.
3. Few facts are required to be noticed. Ujjagar Singh and others were owners of 8 Kanals and 11 ½ marlas of land, which was acquired by Ludhiana Improvement Trust (for short `Trust'). The Land Acquisition Tribunal constituted under the Town Improvement Act enhanced the compensation vide judgment dated 21.10.1985. The first execution petition filed by Ujjagar Singh and others was dismissed as not fully satisfied on 21.9.1991. Second execution application dated 27.9.1991 was filed for recovery of amount of Rs.4,27,068.20 paisa along with future interest @9% from the date of application till the date of recovery. Prayer in the execution application is extracted as under:-
“It is, therefore, prayed an amount of Rs.4,27,068-20P along with future interest at the rate of 9% per annum from the date of application may be recovered from the judgment debtors through attachment of properties of judgment debtors for the payment to the decree holders.”
Learned executing court asked for report from the Clerk, attached to the Court. Although, the zimni orders (daily orders) passed by the courts are not clear, however, sincere effort is being made to reproduce the same as under:-
“Present: Sh.S.P.Singh ......... Counsel for the DH.
“Report perused. It be registered warrant of attachment be issued on 30.11.1991 on deposit of PF and list of property.
Sd/-3.10.1991
Present: Sh.S.P.Singh Toor, Counsel for the DH.
Warrant of attachment not issued as PF and list of property not filed. The same be filed within two days. Warrant of attachment be issued for 22.02.1991 on deposit of PF and list of property within seven days.
Sd/-30.11.1991
Present: None.
Case taken up today as I will be on leave from 10.02.1992 to 24.02.1992. This case is adjourned to 25.04.1992 for issuance of warrant of attachment. Warrant of attachment be issued for the date fixed. The parties as well as their counsel be also informed accordingly.
Sd/-8.2.92
Present: Sh.S.P.Singh, Counsel for the DH.
Due to Lok Adalat, this case was adjourned to 23.05.1992 for filing the application under Order 21 Rule 66 CPC. Property of JD be attached.
Sd/-25.4.92
Present: Sh.S.P.Singh Sood, Counsel for the DH.
Notice under Order 21 Rule 66 CPC duly served but nobody has put in appearance on behalf of the JD. Now warrants of sale be issued as per following dates on depositing the necessary.
Charges 30.05.1992
List of Notice 13.06.1992
Munadi 17.07.1992
Auction 12.08.1992
Report 24.08.1992
Sd/-25/5/92
Present: Sh. Ahsok Mittal, Counsel for the DH.
Sale has been duly effected as reported by Reader. The auction purchaser has already deposited 1/4th of the sale auction amounting to Rs.5,66,250/-. Now the auction purchaser has filed an application to deposit 3/4th of the sale consideration and to come up on 19.09.1992 for further proceedings.
Sd/-24.8.92
Present: Counsel for the DH.
To come up for consideration on 26.09.1992 as prayed.
Sd/-19.9.92
Present: Counsel for the DH.
Sh.P.K.Jain, Advocate for the J.D./Objector
Sh.R.K.Talwar, Advocate counsel for the Auction Purchaser
Application for setting aside the attachment and auction has been moved by JD/Objectors. Copy given. To come up on 30.09.1992 for reply and consideration.
Sd/-
It will be significant to note here that perusal of the file proves that initially the decree holder filed an application dated 1
