Abdul Hafeez vs Bhagwat Prasad

N.L. Ganguly, J.—This revision is directed against the order passed by the Execution Court by which the execution court rejected the objections (39-Ga, 40-Ga and 41-Ga) of the Judgment debtor.

The case of the judgment-debtor in the objections was that three separate properties belonging to the judgment-debtor was sought to be attached and sold in auction The Judgment debtor stated that the decree-holder in 1982 bad given the valuation of the three properties as Rs. 50 thousand. At that time when the tentative valuation was given by decree-holder, no objection was filed by the judgment-debtor. In 1989 when the execution court was proceeding to issue proclamation for sale, an objection was filed by the Judgment-debtor that the valuation of the three separate properties sought to be attached and sold in the execution was more than 8 lakhs. It was urged that only one of the properties, if sold, was sufficient to satisfy the entire decree. It was, thus, requested that fresh valuation be got assessed and thereafter only the sale proclamation and order for attachment be issued. After hearing the objections of the judgment-debtor, the learned execution court rejected the objections on the ground that it was open for the judgment-debtor to raise this plea in 1982 as provided under Order 21 Rule 66 Code of Civil Procedure. This was not done. As such, the execution court refused to accept the objections of the judgment-debtor.

After hearing the learned Counsel for the revisionist, I consider it that to meet the ends of justice, it would be proper that the execution court may be directed that the court may keep the three properties under attachment but shall specify in the order that any one of the attached property may be put up for auction sale, if by auction of the said property, the entire decreatal amount is satisfied, then there would be no need to sell the rest of the attached property. Necessary consequential orders, may be passed thereafter by the execution court itself. The judgment-debtor may request the execution court to put which of the three properties to be put up for auction first. Thereafter, if after auctioning the first attached property, the decreatal amount is not satisfied, then at the other property to be pointed out by the judgment-debtor, may be put for auction. If auction sale of that property fully satisfy the decreatal amount, then there would be no need to sale the third attached property However, if two properties after sale is not sufficient to satisfy the entire decreatal amount, the third would be sold in auction. The execution court is directed to proceed in the manner directed above. However it is clarified that it is perhaps not possible to complete and finalise the auction sale within a period of one month for the three properties. It shall not be open to the Judgment-debtor to raise the objection under Order 21 Rule 69(2) of CPC which reads as under:

Where a sale is adjourned under Sub-rule (1) for a longer period than (thirty) days a fresh proclamation under Rule 67 shall be made, unless the judgment-debtor consequents to waive it.

The counsel for the Judgment-debtor/revisionist-Applicant states before this Court that he undertakes and consents to waive on behalf of his client-revisionist that no such objection under Order 21 Rule 69(2) Code of Civil Procedure, would be raised, if raised would not be entertained by the execution court. The revision petition is dismissed with these observations and the learned execution court is expected to proceed with the execution, as indicated above.

The revision is dismissed.

A copy of this order be given to the counsel for the revisionist in three days time on payment of usual charges.