Lakhwinder Singh vs Chetan Dass and Another

L.N. Mittal, J.—Judgment Debtor (JD)-Lakhwinder Singh has filed this revision petition u/s 115 of the CPC (in short, CPC), assailing judgment dated 21.11.2012 passed by learned District Judge, Fatehabad. Suit filed by respondent No. 2 Bhagwan Dass Goel-Decree Holder (DH) against petitioner was decreed for recovery of Rs. 5,59,545/- with interest @ 6 % per annum vide ex parte judgment and decree dated 02.04.2007. DH filed petition for execution of the said decree on 02.02.2008. Land of JD petitioner measuring 34 kanals 2 marlas was attached in the execution proceedings. DH filed application under Order 21 Rule 66 CPC for sale of the attached land. The attached land was put to auction on 20.11.2010. Chetan Dass-respondent No. 1 being highest bidder was auction purchaser of the attached land for Rs. 26,25,000/-. Respondent No. 1 deposited the auction money. DH withdrew the decretal amount of Rs. 7,41,846/- out of it. Respondent No. 1 also moved application on 02.02.2011 for confirmation of sale, issuance of sale certificate and delivery of possession of the land sold. It was thereafter that JD-petitioner filed application (dated 31.03.2012 as stated by counsel for the petitioner) for setting aside the auction sale held on 20.11.2010. It was pleaded that the entire suit land should not have been sold and only 2 kanals could have satisfied the decree, market rate being not less than Rs. 32,00,000/- per acre (8 kanals). The said application was opposed by auction purchaser. Learned Executing court vide order dated 14.08.2012 partly allowed the application of respondent No. 1 and set aside the sale of attached land except to the extent of the land sufficient for satisfying the decretal amount including interest. JD, auction purchaser and DH were directed to furnish details of the decretal amount and the area of land sufficient to satisfy the decretal amount. However, appeal preferred against the said order filed by the auction purchaser has been allowed by learned District Judge vide judgment dated 21.11.2012. Feeling aggrieved, JD has filed the instant revision petition.

I have heard learned counsel for the parties and perused the case file.

Learned counsel for the petitioner relying on two judgments of Hon''ble Supreme Court in the cases of Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, and Ambati Narasayya Vs. M. Subba Rao and another, contended that only that part of the attached land should have been sold which was sufficient to satisfy the decree and excess area should not have been sold. On the other hand, learned counsel for respondent No. 1-auction purchaser defended the impugned order of the District Judge and contended that the JD-petitioner did not come forward to contest the execution proceedings at any stage although he was aware thereof.

I have carefully considered the matter. The JD-petitioner had filed application for setting aside ex parte judgment and decree. In the said application, the petitioner himself pleaded that execution proceedings were pending, as pointed out by learned counsel for respondent No. 1. However, in spite of having knowledge of the execution proceedings, the JD petitioner did not file any objection therein. It is also not the case of the JD petitioner that he was not served with notice of the execution petition. On the other hand, he was aware of the execution proceedings. Moreover, after attachment of land, notice of application under Order 21 Rule 66 CPC was also given to the JD-petitioner. It is not his case that he was not served with the said notice. However, even at that stage, the JD did not raise any objection much less the objection which is now sought to be raised by him.

In view of order 21 Rule 90(3) CPC, the present application of the JD could not be entertained to set aside the sale. The said provision is reproduced hereunder:

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

The JD could have raised the aforesaid plea before proclamation of sale was drawn up pursuant to application under Order 21 Rule 66 CPC. However, at that stage, the JD did not raise any such objection. On the contrary, the application was filed by the JD more than one year four months after the actual sale by public auction had taken place. The ground taken in the application dated 31.03.2012 filed by the JD-petitioner was available to him before the proclamation of sale was drawn up. Consequently the said ground could not be raised by the JD and could not be entertained by the Court to set aside the same at the late stage long after sale, in view of Order 21 Rule 90(3) CPC. On the other hand, much water has flown down the Ganges after the sale took place. The auction purchaser deposited the auction money. The DH has withdrawn the decretal amount out of it. The clock could not be put back now at this belated stage. The application filed by the petitioner was also barred by limitation. In the aforesaid circumstances, sale of the attached land in favour of respondent No. 1 auction purchaser deserved to be confirmed. The sale could not be set aside on the ground pleaded by the JD-petitioner. Therefore, impugned judgment of the lower appellate Court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of limited revisional jurisdiction u/s 115 CPC. The revision petition is devoid of merit and is accordingly dismissed.