Execution of Decree – Auction Sale – Mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale.

Mr. Raj Mohan Singh, J.:- This revision petition has been preferred by thepetitioners against the order dated 04.04.2006 passed byAdditional District Judge, Sonepat vide which order dated17.01.2006 passed by Civil Judge (Senior Division), Sonepat,dismissing the objections filed by the petitioners was upheld.

2. Civil Suit No.702 dated 02.12.1983 was filed byrespondent No.1/decree holder for recovery of Rs.61,843.20.Petitioner No.1 is a proprietorship firm who took loan fromrespondent No.1/Bank after mortgaging the suit land as securityfor repayment of the loan. Loan was not repaid as per terms andconditions of the loan. The suit was decreed vide judgment anddecree dated 09.06.1987 along with cost. In execution of thedecree, property of the firm was put to auction and was sold for aconsideration of Rs.2,80,000/- by the process of the Court.Objections were filed under Order 21 Rule 90 read with Section47 and 151 CPC on the ground of irregularity and fraud as theproperty did not exclusively belong to objector Rajender Parshad.The property was worth more than Rs.40,00,000/- and was soldat a meager amount of Rs.2,80,000/- in collusion with officials ofBank/decree holder and auction purchaser. Mandatory provisionsof Order 21 Rule 66 CPC were not complied with, nor thejudgment debtor was served with notice under Order 21 Rule 66CPC. The execution was filed on 25.07.1992. Ram Dhanprincipal judgment debtor died on 06.03.1989. On 02.11.1993,report was received by the executing Court regarding the death ofRam Dhan. Death certificate of Ram Dhan was tendered byRajender Parshad son of Ram Dhan through whom petitionerNo.1 has been impleaded. On 20.11.1993, executing Courtordered for issuance of warrant of attachment. On 20.11.1993,following order was passed:-

“Present: Counsel for decree holder.

List of property filed by DH. Now warrant ofattachment be issued for 05.02.1994 on previous PF andold MF etc.

Sd/-

SJIC, Sonepat,

20.11.1993.”

3. Attachment was effected and notice under Order 21Rule 66 CPC was ordered to be issued to the judgment debtor for23.04.1994 on filing application and PF etc. vide order dated05.03.1994. After the order dated 20.11.1993, Bank/decreeholder filed an application, showing the value of the land andbuilding as Rs.10,00,000/- along with affidavit of BranchManager. A notice under Order 21 Rule 66 CPC was allegedlyissued and was allegedly served upon the judgment debtor andthereafter, auction was fixed for 27.05.1996. The auction washeld on 07.06.1996 for an amount of Rs.2,80,000/-. The sale wasconfirmed on 14.09.1996. The objections filed by the judgmentdebtors/objectors under Order 21 Rule 90 read with Section 47and 151 CPC were dismissed by the executing Court vide orderdated 17.01.2006 by holding that in the execution filed by thedecree holder, Shri I.S. Saroha, Advocate appeared on behalf ofthe judgment debtor. The aforesaid fact was established from theorders dated 02.01.1993 and 27.09.1995. When the judgmentdebtor did not deposit the decreetal amount, the mortgagedproperty was put to auction. Warrant of attachment was issued on20.11.1993 and auction was done on 07.06.1996. The auctionwas confirmed on 14.09.1996. Sale certificate was issued torespondent No.2 under Order 21 Rule 94 CPC on 19.03.1997.

4. As per Article 127 of the Limitation Act, the timeprescribed for filing application to set aside a sale in execution ofa decree including any application by the judgment debtor is 60days from the date of sale. Earlier the limitation was of 30 days,however, vide Amendment Act No.104 of 1976, the amendedprovision was enforced w.e.f 01.02.1977. Executing Court heldthat the objections were hopelessly time barred as the judgmentdebtor had already appeared before the executing Court throughShri I.S. Saroha, Advocate and the property was sold thereafter.The objections were filed after a period of one year and fivemonths and therefore, the objections were held to be hopelesslytime barred. Order dated 17.01.2006 was up