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2023 Supreme(P&H) 546
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harsimran Singh Sethi, J.
Kesar Singh – Appellant
Versus
Harbhajan Kaur @ Jasvir Kaur & Ors. – Respondents
CR No. 9059 of 2017 (O&M)
Decided On : 16-02-2023
Mr. Narinder Singh Dadwal, Advocate, for the Appellant; Mr. Jagjit Singh, Advocate, for the Respondent
The court emphasized the importance of confirming the auction and issuing the Sale Certificate in accordance with Order 21 Rule 94 once the sale deed has become absolute in favor of the petitioner.
Headnote:
Sale Certificate - Execution Proceedings - Order 21 Rule 94 - The court discussed the provisions of Order 21 Rule 94 and highlighted that the sale deed had become absolute in favor of the petitioner. The court set aside the impugned order and remanded the case to the Executing Court to pass an appropriate order considering Order 21 Rule 94 for the issuance of the Sale Certificate.
Fact of the Case:
The petitioner purchased a property in an auction ordered by the court to satisfy a decree. The execution application was dismissed, and the petitioner's subsequent applications for restoration and issuance of Sale Certificate were also dismissed by the Executing Court.
Finding of the Court:
The Executing Court failed to confirm the auction and issue the Sale Certificate in favor of the petitioner, despite the petitioner depositing the sale consideration and the decree being satisfied. The impugned order was set aside, and the case was remanded to the Executing Court.
Issues: Failure of the Executing Court to confirm the auction and issue the Sale Certificate, despite the petitioner depositing the sale consideration and the decree being satisfied.
Ratio Decidendi: The sale deed had become absolute in favor of the petitioner, and the Executing Court failed to consider Order 21 Rule 94 for the issuance of the Sale Certificate.
Final Decision: The impugned order was set aside, and the case was remanded to the Executing Court for appropriate consideration of the petitioner's prayer for the issuance of the Sale Certificate.
JUDGMENT
Harsimran Singh Sethi, J. (Oral) - The present revision petition has been filed for setting aside the order passed by the Executing Court dated 18.11.2017 by which, application filed by the petitioner for the issuance of the Sale Certificate in respect of the property which was purchased by the petitioner-applicant under the auction as ordered by the Court while hearing the execution application No.3 of 2000 dated 19.01.2013 titled as Harbhajan Kaur and others Vs. Jagdeep Singh and others for the satisfaction of the decree dated 01.12.2008, was dismissed.
2. Learned counsel for the petitioner argues that respondents No.4 and 5 suffered a decree in favour of the decree holders i.e. respondents No.1 to 3 on 01.12.2008, for the execution of which, respondents No.1 to 3 filed execution application No.3, dated 19.01.2013 titled as Harbhajan Kaur and others Vs. Jagdeep Singh and others. Respondents No.4 and 5 i.e. judgment debtors were proceeded ex parte and during the pendency of the execution petition, the property belonging to respondents No.4 and 5 was attached and, thereafter, was ordered to be sold so as to satisfy the judgment and decree dated 01.12.2008.
3. It is a conceded position that keeping in view the order passed by the Executing Court, the property of respondents No.4 and 5 which was attached and was sold in the auction held on 01.10.2015 and the petitioner purchased the said property measuring 4 kanal 3 Marla in the open auction for a consideration of Rs. 2,86,500/-. The auction amount was deposited by the petitioner being the auction purchaser in the Court and out of the auction money deposited by the petitioner, a sum of Rs. 2,79,000/- was released in favour of respondents No.1 to 3 for the satisfaction of decree dated 01.12.2008. Though, the Executing Court was required to confirm the sale as the property was sold in the execution as ordered in the execution proceedings but after the decree was satisfied, no one appeared on behalf of the decree holder and the said execution application was dismissed in default. Though, the said execution application was dismissed in default, the Court did not confirm the sale in favour of the petitioner though, no objection qua the said auction was ever raised by the judgment debtors, who had already been proceeded ex parte.
4. In order to get the Sale Certificate, the petitioner filed an application for the restoration of the execution petition but the same was dismissed by the Court on 17.08.2017 on the ground that the execution application was not filed by the petitioner. After dismissal of the said application, the petitioner moved an application for issuance of Sale Certificate but the said application was also dismissed by the impugned order by the Executing Court on the ground that as the execution application has already been dismissed, no order can be passed so as to confirm the sale. The said order dated 19.01.2013 is under challenge in the present petition.
5. Notice of the present petition was issued. Respondents No.1 to 3 i.e. decree holders, who have already got their money keeping in view the sale consideration deposited by the petitioner are being represented by a counsel but respondents No.4 and 5 who were the judgment debtors, have not appeared despite service. Hence, there is no option with this Court but to proceed ex parte against respondents No.4 and 5.
6. I have heard learned counsel for the parties and have gone through the record of the case with their able assistance.
7. It is a conceded position that the execution application was filed by respondents No.1 to 3 so as to satisfy the judgment and decree dated 01.12.2008. It is also a conceded position that during the pendency of the execution application, the property of respondents No.4 and 5 was attached and thereafter sold in auction through the Court. It is also not disputed that the petitioner purchased the said property in the auction conducted by the Court and deposited the full consideration with
