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IN THE HIGH OF MADHYA PRADESH
A.K. Shrivastava, J.
Bhanu Shankar Raikwar and another v. Vijay Shankar Raikwar and others
Miscellaneous Appeal No.4455 of 2011 (Jabalpur) : against the order of Third Additional District Judge, Jabalpur, passed in
Execution Case No.20-A of 2008;
Decided on 22.11.2012.
Held : On bare perusal of rule 89 of Order XXI CPC, it is gathered that where any immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of sale or at the time of making the application or acting for or in the interest of such person, may apply to have the sale set aside. Thus, according to me, not only the decree-holder or judgment-debtor but any person claiming an interest in the property sold, may file such type of application and, therefore, it is not necessary that he should be judgment-debtor or decree-holder. Even for the sake of arguments it is held that appellants are not the judgment-debtors, since they are having interest in the property which has been auctioned, therefore, in order to trigger and set in motion the provisions of rule 89 CPC of Order XXI, they are bound to deposit 5% amount as envisaged in rule 89 of Order XXI. Admittedly, the appellants have not deposited the said amount and, therefore, the auction sale cannot be set aside on this short ground. AIR 1990 SC 933 and AIR 1968 SC 372 followed. AIR 1963 Punjab 531 referred to.
flfoy izfdz;k lafgrk] 1908 && vk-21 fu-89 rFkk 90] /kkjk 2¼3½ rFkk 2¼10½ && fMdzh ds fu”iknu esa fd, x, LFkkoj laifRr ds fodz; dks vikLr djus dk vksonu && fodzhr laifRr laifRr esa fgr dk nkok djus okys fdlh Hkh O;fDr }kjk fd;k tk ldrk gS && dzsrk dks lanRr djus ds fy, dz; /ku dk 5 izfr’kr U;k;ky; esa fuf{kIr fd, fcuk xzkg~; ugha gksxkA vfHkfu/kkZfjr % flfoy izfdz;k lafgrk ds vkns’k 21 ds fu;e 89 ds ifj’khyu ek= ls ;g fu”d”kZ fudkyk tkrk gS fd tgk¡ fMdzh ds fu”iknu esa fdlh LFkkoj laifRr dk fodz; fd;k x;k gS ogk¡ fodz; ds le; ;k vkosnu djus ds le; fodzhr laifRr esa fgr dk nkok djus okyk dksbZ Hkh O;fDr ;k ,sls O;fDr ds fgr esa ;k fgr ds fy, dk;Z djus okyk dksbZ Hkh O;fDr fodz; vikLr djokus ds fy, vkosnu dj ldrk gSA bl izdkj] esjs vuqlkj] u dsoy fMdzh/kkjh ;k fu.khZr _.kh cfYd fodzhr laifRr esa fgr dk nkok djus okyk dksbZ Hkh O;fDr bl izdkj dk vkosnu izLrqr dj ldrk gS rFkk] blfy,] ;g vko’;d ugha gS fd mls fMdzh/kkjh ;k fu.khZr _.kh gksuk pkfg,A ;fn cgl ds dkj.k ;g eku Hkh fy;k tk, fd vihykFkhZ fu.khZr _.kh ugha gS] D;ksafd os ml laifRr esa fgr j[k jgs gSa ftls uhyke fd;k x;k gS] blfy,] flfoy izfdz;k lafgrk ds vkns’k 21 ds fu;e 89 ds mica/k dks izofrZr djus rFkk xfr esa ykus ds fy,] os vkns’k 21 ds fu;e 89 esa ;Fkk ifjdfYir 5 izfr’kr jde dk fu{ksi djus ds fy, vkc) gSaA Lohd`r :i ls] vihykFkhZx.k us mDr jde dk fu{ksi ugha fd;k gS rFkk] blfy,] bl y?kq vk/kkj ij uhyke fodz; vikLr ugha fd;k tk ldrkA , vkb vkj 1990 ,l lh 933 rFkk , vkb vkj 1968 ,l lh 372 vuqlfjrA , vkb vkj 1963 iatkc 531 fufnZ”VA
1. This appeal under Order 43 rule 1(j) has been filed assailing the order dated 18.7.2011 passed in Execution Case No.20-A/2008 by learned Third Additional District Judge, Jabalpur by the appellants.
2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that plaintiff Vijay Shankar Raikwar who has been arrayed as respondent No.1 here in this appeal and who shall be referred to as the first respondent filed a suit for partition claiming 1/5th share in the suit property and for obtaining separate possession of his share arraying Ravi Shankar (respondent No.1), Bhanu Shankar and Vinod Shankar (respondents No.2 and 3-appellants), Smt. Manorama (defendant No.4) and Smt. Madhubala (defendants No.5-respondent No.3) as parties to the suit. The said suit of plaintiff was decreed by learned trial Court on 4.2.2002. A copy of the judgment is placed on record. After passing of the preliminary decree when the partition decree was put to execution, a Commissioner was appointed but the property in question could not be partitioned and as stated by learned counsel for the parties, the Court Commissioner submitted a report to the Court that it is not possible to partition 1/5th share and to deliver separate possession of the suit property to the plaintiff. Eventually, the disputed property was firstly attached and thereafter put for sale.
3. After the property in question was auctioned, the present appellants filed objections under Order XXI rules 89 and 90 to set aside the auction sale. This application has been opposed by the respondent No.1. The learned Executing Court by the impugned order has rejected the application. Hence, this appeal has been preferred by the appellants.
4. The contention of Shri A.K. Jain, learned counsel for the appellants is that the property in question was auctioned on 30.3.2011 at 11:00 a.m. in which a right was given to the parties to take part in the auction sale. However, in the auction sale proceedings, only House No.274 was shown and after auction it was shown that Smt. Anju Yadav had been the highest bidder and the auction was knocked down up on her bid Rs.28,01,100/-. The contention of learned counsel is that the auction proceedings were not commenced on 30.3.2011 in between 11 to 3 p.m. They were never contacted on that date and thereafter the proceedings have been submitted to the Court which are forged and concocted and has been submitted in collusion with the auction purchaser Smt. AnjuYadav.
5. Further, it has been put forth by learned counsel that although appellants were directed to take part in the auction proceedings by learned Executing Court but they were never noticed prior to 30.3.2011. According to him, a date earlier to the date of auction i.e. 6.12.2010 auction sale was directed, but on this date no definite date was fixed on which the property in dispute was to be auctioned and, therefore, for this reason the appellants could not take part in the auction sale of House No.274 and not only this, the other persons who could take part in the auction sale, they could not remain present at the time of auction. It is also put forth by him that it is the mandatory requirement of law under Order XXI rule 66 CPC to affix the auction notice upon the disputed property which was to be auctioned but this was never done. The procedure prescribed in Civil Procedure Code and the civil Court rules were totally ignored and were not followed and in this regard my attention has been drawn to rule 208 of M.P. Civil Courts Act, 1958. Learned counsel has also placed reliance on several decisions to set aside the auction sale, they are Mahakal Automobiles and another v. Kishan Swaroop Sharma [(2008)13 SCC 113], Gajadhar Prasad and another v. Babu Bhakta Ratan and others [(1973)2 SCC 629], Chironjilal v. Vidisha Mechanical and Molding Society [1978 JLJ SN 66], and Narayan Pursuhottam Bansod v. Ramchandra Mudalji Choudharkar and others [AIR 19
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