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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Lisa Gill, J.
Pawan Kumar & Ors. – Appellants
Versus
Pankaj Sharma & Ors. – Respondents
Civil Revision No. 7857 of 2018(O&M)
Decided On : 06-01-2022
Order 21 Rule 89 CPC - Setting aside sale - [PROPERTY PARTITION] - [Order 21 Rule 89 CPC] - The court discussed the application under Order 21 Rule 89 CPC, the deposit of bid amount, and the consent of the judgment debtor's brother. The court referred to the provisions of Order 21 Rule 89 and 92 CPC and the judgment in Ram Karan Gupta Vs. J.S. Exim Ltd. and others, 2013(1) RCR (Civil) 837, emphasizing the final opportunity for the judgment debtor to save the property by setting aside the sale before confirmation. The court held that the application could not be entertained if the deposit was not made within the stipulated time, but in this case, the amount was deposited within the period of 30 days, leading to the sale being set aside.
Fact of the Case:
The petitioners and respondents were descendants of Shri Ami Chand and had filed a suit for partition of the property. The property was put to auction, and the judgment debtor filed an application under Order 21 Rule 89 CPC seeking to set aside the sale.
Finding of the Court:
The court found that the application under Order 21 Rule 89 CPC was filed with the consent of the judgment debtor's brother, and the amount was deposited within the stipulated period, leading to the sale being set aside.
Issues: The issues involved the deposit of bid amount, the consent of the judgment debtor's brother, and the specific prayer for setting aside the sale in the application under Order 21 Rule 89 CPC.
Ratio Decidendi: The court emphasized the final opportunity for the judgment debtor to save the property by setting aside the sale before confirmation and held that the application could not be entertained if the deposit was not made within the stipulated time, but in this case, the amount was deposited within the period of 30 days, leading to the sale being set aside.
Final Decision: The revision petition was dismissed, and the impugned order setting aside the sale was upheld.
JUDGMENT
Lisa Gill, J. - This revision petition has been filed for setting aside order dated 16.10.2018, passed by the learned Civil Judge (Junior Division), Ludhiana, vide which application filed under Order 21 Rule 89 CPC by judgment debtor no.4 namely Pankaj Sharma, arrayed as respondent no.1 in this revision petition, has been allowed for setting aside the sale conducted on 14.05.2018.
2. Brief facts necessary for adjudication of the case are that, the petitioner No.1-Pawan Kumar and petitioner No.2-Surinder Kumar as well as respondent No.5-Darshana Devi, children of Ram Dev son of Shri Ami Chand, filed a suit for partition of the property in question, as detailed in the plaint including four shops and a house situated at its back by metes and bounds for 1/4th share of the plaintiffs and also sought the accounts of 1/4th share of the plaintiffs and arrears of rent for three shops from 04.04.2006. Suit was decreed and preliminary decree was passed on 05.05.2011 by the learned Civil Judge (Junior Division), Ludhiana. An application for passing of the final decree was filed, which was allowed by the learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 05.08.2015, wherein it was directed that the property be put to auction and the sale proceeds be divided between the parties as per their respective shares. Decree holders thereafter filed an application for execution of the final decree. Respondent no.1 i.e. judgment debtor no.4 appeared before the learned Executing Court and on applications moved by the decree holders and judgment debtor, they were permitted to participate in the auction proceedings vide order dated 20.12.2017 (Annexure P3). Judgment debtors No.1, 2 and 3 were proceeded ex-parte. Respondents No.1 and 4 (i.e., judgment debtors No.4 and 5) were duly represented by one counsel.
3. The property was thereafter put to auction. The Court auctioneer moved an application on 15.05.2018 for depositing the bid amount in the shape of demand drafts, which was allowed and the matter adjourned to 31.05.2018. As per report dated 31.05.2018 of the Court auctioneer, highest bid for the property was for Rs.78,50,000/- and 1/4th of the amount i.e. Rs.19,62,500/- was handed over to her by way of three cheques at the spot on 14.05.2018 by Pawan Kumar s/o Ram Devi s/o Ami Chand, Ashok Kumar s/o Sham Lal s/o Ami Chand and Surinder Kumar s/o Ram Devi s/o Ami Chand (highest bidders) i.e. the present petitioners. At request of the Court auctioneer, demand drafts of Rs.6,55,000/-, Rs.6,54,167/- and Rs. 6,53, 333/- were handed over by Pawan Kumar, Ashok Kumar and Surinder Kumar, respectively and the cheques handed over on 14.05.2018 were returned to them.
4. Respondent no.1 filed an application for deposit of 5% of the total sale proclamation to the auction purchasers alongwith another application for permission to deposit the remaining amount of the sale proclamation after deduction of his share. Respondent no.1 moved an application under Order 21 Rule 89 CPC, taking a plea that auction was conducted behind his back without any intimation, depriving him of an opportunity to participate therein. Collusion of the petitioners with some of the judgment debtors was alleged. Petitioners filed an application dated 21.05.2018 for not permitting the applicants to deposit the bid amount. Learned Executing Court on 31.05.2018 permitted respondent no.1 to deposit the amount in question and notice was issued to the decree holders for the date fixed.
5. Application under Order 21 Rule 89 C.P.C. was allowed by the learned Executing Court subject to the condition that respondent no.1 shall deposit the share of Neeraj Sharma within 30 days. Objection raised by the petitioners that the amount deposited by respondent no.1 was deficient inasmuch as only Rs.62,80,000/- was deposited, was not found material in view of the statement of Neeraj Sharma - judgment debtor no.8 to the effect that respondent no.1-Pankaj Sharma had filed the appli
AI
The final opportunity for the judgment debtor to save the property by setting aside the sale before confirmation under Order 21 Rule 89 CPC.
The main legal point established in the judgment is that an application under Order 21 Rule 89 CPC can be filed with the consent of the judgment debtor's related party and the required amount must be....
In partition disputes, co-owners can forego monetary claims for shared occupancy, aligning with equitable principles tailored to family dynamics.
The Court held that the objections raised by Defendant No.1 were not tenable and allowed the revision petition in favor of the Plaintiff and Defendant Nos. 2, 3 & 4. The Court found that the objectio....
Unlike a stranger purchaser in a public auction, a co-sharer himself has a pre-existing right in suit schedule property. parties are given an option to go for auction to see that intrinsic value of s....
The court confirmed that applications for setting aside auction sales must be filed within 60 days as per statutory requirements, and reasons for delays must be strictly justified to be considered.
Auction sale of property – Non-compliance of mandatory provisions can vitiate auction sale of property.
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