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PUNJAB AND HARYANA HIGH COURT
L.N. Mittal, J.
Fateh Singh —Appellant
versus
Sheela Devi & Ors. —Respondents
Regular Second Appeal No. 1454 of 2012
Decided on 28.3.2012
(ii) Civil Procedure Code,1908—Order 21 Rule 90—Auction sale-Setting aside of—Impugned sale was confirmed and made absolute under Order 21 Rule 92(1) CPC in the execution proceedings—Consequently, said order confirming sale could not be challenged by way of instant suit in view of Order 21 Rule 92(3) CPC—Plaintiff/appellant who was judgment debtor in the execution proceedings, failed to file any application either under Section 47 CPC or under Order 21 Rule 90 CPC before sale was confirmed and made absolute—Hence instant suit to set aside sale effected and confirmed in execution of decree held not maintainable—If the plaintiff appellant was without any remedy, he was to blame himself for this situation—He ought to have assailed sale in execution proceedings at appropriate stage—He did not do so—The sale had attained finality—Impugned judgments of Courts below not suffered from any error so as to call for interference—No question of law, much less substantial question of law, arose for adjudication in second appeal-Appeal dismissed. (Paras 8 to 10)
Result: Appeal dismissed.
L.N. Mittal, J.— Plaintiff Fateh Singh having lost in both the courts below has filed this second appeal.
2. Plaintiff/appellant filed suit against Raj Kumar/defendant (since deceased and represented by respondents as his legal representatives). Decree for recovery of money was passed in a previous suit in favour of Raj Kumar against Fateh Singh present plaintiff/appellant. In execution of said money decree, land of the appellant herein was sold by auction. Sale became final and was confirmed by the executing Court. Sale certificate regarding 20 Kanals land was issued in favour of Raj Kumar (decree holder/ auction purchaser). .
3. In the instant suit, the plaintiff/appellant alleged that he had 2/7th share in 196 Kanals 8 Marias land out of which l/7th share of 196 Kanals 8 Marlas land was attached. However, auction sale was held regarding 1/7th share of 20 Kanals land, but sale certificate has been issued regarding 20 Kanals land. The plaintiff accordingly sought declaration that he is owner in possession of 20 Kanals land to the extent of his 2/7th share and the auction sale dated 23.2.2002 is wrong and illegal and sale certificate is valid for only 1/7th share of 20 Kanals land and the said sale certificate dated 31.5.2002 regarding entire 20 Kanals land is wrong and illegal.
4. The defendants resisted the suit and controverted the plaintiff’s averments. The defendants admitted that l/7th share of 196 Kanals 8 marlas land was attached in execution proceedings. Plaintiff herein (judgment debtor in the previous case) was in exclusive possession of 20 Kanals land which was put to auction in lieu of his share in the total land. The said suit land measuring 20 Kanals was of inferior quality and nobody was ready to bid at the auction which was conducted many times. Ultimately defendant who was decree holder in that case sought permission from the executing Court to bid at the auction and purchased the suit land being highest bidder. The sale stands confirmed and sale certificate has been issued. The defendant defended the auction sale as well as the sale certificate as legal and valid.
5. Learned Civil Judge (Junior Division), Budhlada vide judgment and decree dated 15.12.2010 dismissed the plaintiff’s suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 24.1.2012. Feeling aggrieved, plaintiff has filed this second appeal.
6. I have heard learned counsel for the appellant and perused the case file.
7. Counsel for the appellant vehemently contended that sale was not conducted properly and decree holder could not bid in the auction sale as no permission was sought from the executing Court by the decree holder and therefore, the impugned sale as well as sale certificate are liable to be set aside. Reliance has been placed on judgment of Andhra Pradesh High Court in the case of Penmatsa Janikamma and another v. Atchanta Bulleyya, 1985 AIR A.P. 234. It was also contended that the plaintiff appellant had also moved the executing court by filing application under Section 47 of the Code of Civil Procedure (in short, CPC) for setting aside the auction sale but the said application was dismissed by the executing Court on the ground that the said Court had become functus officio. It was contended that if the instant suit is not entertained, the plaintiff/appellant would have no remedy.
8. I have carefully considered the aforesaid contentions but find myself unable to accept the same. Any person whose interest is effected by sale of immovable property in execution of decree may apply to the executing court to set aside the sale under Order 21 Rule 90 CPC on the grounds mentioned therein. Order 21 Rule 92(1) CPC further provides that where no such application is made or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Order 21 Rule 92(3) CPC further sti
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