TMI Blog1993 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... 256.05 ps. was passed against the judgment debtor in 1964. In November, 1964 the judgment-debtor deposited ₹ 8,000 in the trial court. On 4th January, 1965 the judgment debtor deposited a further sum of ₹ 391.55 and thought that he had satisfied the decree. On 29th November, 1965 the decree-holder made an application claiming another sum of ₹ 350. This application was allowed but thereafter he got his execution application dismissed for default. Thereafter for about three years the decree-holder remained silent and in 1968, filed another Money Execution Case No. 19/55 of 1968 in the executing court claiming another sum of ₹ 350 plus interest. In execution of this application, on 12th September, 1978 the judgment-debtor's property i.e. land, situated in the market, consisting of an area of one decimal was sold in auction for ₹ 1,500 and was purchased by the decree-holder himself. Before the expiry of the period of limitation for filing objections, namely 60 days as provided under Article 127 of the Limitation Act, 1963, as amended by Section 98 of the Amendment Act, 1976 to set aside auction sale in court, the executing court, for non filing or obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 12,000 per Katha. A.W. 4, Alakh Roop Lal, Karpardaz was examined to prove the Kebala, Ext. 1, executed in the year 1975 which showed that the value of the land in Bazar area was ₹ 4,000 per decimal. 8. The decree-holder examined five witnesses. The first witness was O.P.W. 1 Pratap Nar Mishra, Karpardaz. This witness sought to prove the fixation of order of attachment and sale proclamation on the property. O.P.W. 2 was Baijnath Rajak who supported O.P.W.l. O.P.W. 3 was Raghunandan Misra, a court peon, who stated about the service of notice of attachment by beat of drum on 29th August, 1975. He proved his report Ext. 'C' on the attachment notice. This witness also deposed about sale proclamation notice being served through civil courts peon Balmiki Jha. He proved the report of Balmiki Jha, Peon, Ext. C-1. In cross-examination he stated that Balmiki Jha had retired and that he lives in his own house at Sangrampur. Balmiki Jha had not been examined. O.P.W.4 was Jagarnath Sao who stated that the court peon had served notice in his presence. He proved his signatures on the attachment notice. O.P.W. 5 was Ramchandra Vavidas. He deposed that on 5th August, 1978 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch period beings to run 127 To set aside a sale Sixty days The date of the in execution of a sale decree, including any such application by a judgment-debtor 12. Therefore since the sale took place only on 12th September, 1978 the application for setting aside the sale, as provided under the amended law, is within 60 days and thus within time. The sale was thus confirmed even before the expiry of time for filing objections to the same. 13. The lower appellate court took the view that perusal of the order sheets dated 26th March, 1971, 20th July, 1971 and 19th August, 1971 of execution case No. 19/55 of 1968 shows that notices under Order 21 Rule 22 were issued and served on the judgment-debtor. To say the least it was erroneous on the part of the lower appellate court to refer to the order sheets for showing service of notice on the judgment debtor as required under Order 21 Rule 22 of the Code. The proceedings for setting aside the sale under Order 21 Rule 90 of the Code were independent proceedings and the file of proceedings under Order 21 Rule 22 of the Code could not be referred to in such proceedings without actual proof of service as per the various reports of alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. 14. It will be noticed that Sub-rule (1) of Rule 54 of Order 21 of the Code contemplates and order of prohibition to be served on the judgment-debtor from transferring or charging the property in any way first if the property sought to be sold is immovable property. This is for the benefit of the decree-holder. Even at this stage if the judgment-debtor had notice of attachment, he could pay the balance decretal amount and thereafter attachment would either not be effected and if already effected would be vacated. Sub-rule (1-A) contemplates that this order shall require the judgment-debtor to attend court on a specified date, to take notice of the date to be fixed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch may, since the date of such proclamation of sale, have been received by the decree holder. (2) Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale 15. The lower appellate court after assuming that there was no proper service of notice under Order 21 Rule 54 of the CPC went on to the question of judgment-debtor's having not pleaded any substantial loss or injury. It will be noticed that it was a case of typical money lender who has evil-eye to grab the property of the judgment-debtor some how or the other. He allows the first application for execution to be dismissed; waits for practically three years to file another execution application claiming a sum of ₹ 350 only sees to it that judgment-debtor is kept ignorant of the proceedings in court; obtains permission to himself buy the property; gets the property sold for recovery of petty amount of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to Rule 90 of Order 21 of the Code that the mere absence of, or defect in, attachment of the property sold shall not, itself, be a ground for setting aside a sale under this rule . But if the judgment-debtor is kept totally ignorant of the execution proceedings rights from the date of execution application till sale, it cannot be merely called a mere irregularity in attachment and thus of no consequence. Proceedings under Order 21 Rule 66 of the Code for settlement of terms of proclamation of sale are very material for both the parties, much more for the judgment-debtor as it is well known that the decree-holder always tries to under value the property whereas the judgment-debtor tries to over-value the property. However, provisions are made in the Code in Sub-rule (2) of Rule 66 of Order 21 that the sale proclamation shall be drawn up after notice to both the decree-holder as well as the judgment-debtor and shall state the time and place of sale and other requirements mentioned therein. No notice was given under Order 21 Rule 54 (1-A) of the Code which was mandatory for the court. In any case no notice for settlement of terms of proclamation of sale was served on the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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