Sardar Singh vs Chunni Lal and ors.

I.S. Tiwana, J. (Oral)

A decree for Rs. 7120/ was passed against Beeru and in favour of Chnnu Lal. Prior to the passing of this decree, the land in question measuring 116 Kanals (or 141/2 acres) was admittedly attached. Later, Beeru the judgementdebtor transferred the said property in favour of the petitioner and his five brothers i.e. his sons through a consent decree dated November 22, 1976. Chunni Lal decreeholder impugned this consent decree through a suit claiming that the same had been brought about with a view to defeat the right of the creditors, including him and, therefore, be set aside declaring it to be null and void. This suit of Chunni Lal, though was dismissed by the trial Court on December 1, 1979, yet the appellate Court decreed the same vide judgment dated December 18, 1982, Exhibit D.H.I. Earlier to the dismissal of Chunni Lal''s suit by the trial Court on December 1, 1979, the petitioner filed a suit against him i.e. Chunni Lal and impleaded his brothers and father as proforma defendants seeking permanent injunction that the property which stood transferred in their names should not be sold in execution of the abovenoted decree passed infavour of Chunni Lal. During the pendency of that suit, a compromise was arrived at between Chunni Lal and the petitioner, the material terms of which as per the admissions made by the decreeholder in the present execution application itself, were as follows: The petitioner Sardar Singh would pay Rs. 1500/ to Chunni Lal December 12, 1979, Rs. 2000/ on June 15, 1980, Rs. 1500/ on December 15, 1980, and Rs. 1000/ on June 15, 1981.

In case of default of any of the above noted instalments, the decreeholder was made entitled to recover the entire amount through the execution of the decree referred to above along with interest at the rate of 12 per cent per annum. In pursuance of this agreement, the petitioner only paid Rs. 2315/ on September 15, 1979. He failed to pay the rest of the instalments. As a result of this, Chunni Lal filed the present execution proceedings for the realization of the balance decretal amount alongwith interest at the rate of 12 per cent per annum as agreed to by Sardar Singh vide abovenoted agreement between the parties. During these proceedings, the abovenoted land measuring 116 Kanals has been sold for a sum of Rs. 13,000/ only. The petitioner filed objections against this auction sale which were summarily dismissed by the execution primarily on the ground that he had no interest in the property in question. Even his appeal against this order of the executing Court has been dismissed by the District Judge, Narnaul. He impugns these orders with the assertion that as a matter of fact these execution proceedings are the result of a fraud which has been played upon the Court by the decreeholder i.e. Chunni Lal. Besides, this, it is also contended on his behalf that neither the sale proclamation was prepared in terms of Order 21, rule 66, Civil Procedure Code, nor any due publicity was given prior to the sale of the property in question. This stand of his is, however, sought to be refuted by the respondent decreeholder on the plea that firstly the petitioner has no locus standi to challenge the auction proceedings, he having no interest in the property in question, and secondly the provisions of Order 21 rule 66, Civil Procedure Code, were duly complied with. Having heard the learned counsel for the parties, I find that the petitioner does deserve to succeed.

So far as the question of petitioner''s locus standi to impugn the sale by auction is concerned, I see no weight in the objection of the learned counsel for the decreeholder. The same deserves to be summarily rejected in view of the fact that the decreeholder has himself impleaded the petitioner as a party. He thus being a party to the proceedings, has every right to impugn the execution proceedings and to challenge the same by way of appeal and revision. Otherwise also, I am satisfied that the petitioner does have some interest in the property in question and it is primarily on the basis of his statement or agreement which he entered into with the respondent decree holder during the pendency of his suit for permanent injunction referred to above that the decreeholder is claiming interest at the rate of 12 per cent per annum on the decretal amount due to him.

So for as the stand of the petitioner that there was no proper compliance of Order 21 rule 66, Civil Procedure Code, is concerned, I have seen the original proclamation prepared by the Court and find merit in the contention of the learned counsel for the petitioner. It is apparent thereform that the executing Court never applied its mind as to what extent the property was required to be sold. With the latest amendment of clause (a) of subtrue (2) of rule 66, Order 21, Civil Procedure Code, it looks imperative on the part of the Court to find out if a part of the property required to be auctioned would be sufficient to satisfy the decree. A learned Judge of this Court in Pohkar v. Mussadi Lal, 1986 R.R.R. 614 : 1985 P.L.J. 514, relying on an earlier Supreme Court judgment in Takkaseela Peeda Subba v. Pujar Padmavathamma, A.I.R. 1977 SC. 1789, has ruled that only such of the property should be sold which can satisfy the decree and not the whole of it Keeping in view the general trend of prices of land, I am of the opinion that it was absolutely not necessary for the Court to put the entire land to auction. Further, the abovenoted proclamation did not mention the encumbrance to which the property in question was liable and thus the provisions of clause (c) of the above noted sub rule (2) were given a complete go by. It is thus patent there was no valid proclamation prepared by the Court. Besides all this, I am of the opinion that the other assertion of the petitioner that the genuineness of this auction is also not beyond doubt is well established. It is the conceded position that at the time of auction, there were only three bidders and out of then two where from the village of the decreeholder himself and the third one in whose favour the property has been sold was decreeholder''s wife''s brother. Then the extent of the property sold i.e. 116 Kanals (14 Acres) for a paltry sum of Rs. 13,000/ by itself looks to be fraudulent. As is well known, the prices of agricultural land, even in remote areas, have gone over high. I thus feel satisfied that even on this ground the auction proceedings do not deserve to be upheld.

Thus, for the reasons recorded above, this petition is allowed and the entire auction proceedings, including the proclamation prepared under Order 21, rule 66 Civil Procedure Code, are set aside. It is directed that the executing Court would now prepare a proclamation in accordance with law and would not order the sale of more than two acres of land in the first instance. In case, any amount still remains due then another acre of land may be put to auction. However, before all these proceedings are taken up in accordance with the provisions of Order 21, the Court would grant a month''s time to the petitioner to pay the entire decretal amount due to Shri Chunni Lal with 12 per cent interest per annum in terms of the statement of Sardar Singh petitioner referred to above. It would only be thereafter, i.e. if the petitioner fails to pay the amount within a period of one month from the date of its calculation by the Court, that the property as directed above, would be put to auction. However, the entire land would remain under attachment till the claim of the decreeholder respondent is satisfied. I pass no order as to costs. The Parties through their counsel are directed to appear before the executing Court on May 1, 1986.