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Hari Prasad Vs. Om Prakash and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 458 of 1971
Judge
Reported inAIR1973All504
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 54(2) and 90
AppellantHari Prasad
RespondentOm Prakash and ors.
Appellant AdvocateR.P. Goyal, Adv.
Respondent AdvocateG. Varma, Adv.
DispositionRevision allowed
Excerpt:
civil - affixation - order 21 rule 90 of code of civil procedure,1908 - affixation of sale proclamation not on the property to be sold but on other property - affect the price - buyers come for a particular property - held, judgment debtor sustained substantial injury by reason of this material irregularity, amounts to illegality, in conducts of the sale proceedings. - - it may be that the property to which the proclamation was affixed was not as good as the property in dispute and the bidders may not have turned up for the purchase of that property......but justified the refusal on the ground that the objection had not been raised when the sale proclamation was drawnup tinder order 21, rule 66. the applicant, therefore, got no opportunity to establish the requirements necessary to get out of the clutches of the proviso to order 21, rule 90, civil p. c. 4. as regards the next objection the finding of the appellate court is that the terms of the sale proclamation were not written by the learned munsiff himself. order 21 rule 110, c. p. c. provides: 'the result of the enquiry under rule 66 shall be noted in an order made for the purposes by the presiding judge in his own handwriting. ..... this provision has been made to guarantee that the trial court applies its mind to the terms of the sale proclamation, and to show that it.....
Judgment:
ORDER

Hari Swarup, J.

1. This is a judgment-debtor's revision arising out of objections under Order 21, Rule 90, Civil P. C. In execution of the decree the immovable property (house) belonging to the appellant was sold. Objections under Order 21, Rule 90, Civil P. C. were filed. They were dismissed by the trial Court Against that order the judgment-debtor filed an appeal which was also dismissed. Against the appellate order the present revision has been filed.

2. The appellate Court found established almost all the objections raised by the judgment-debtor, but still dismissed the appeal on the ground that it was not proved that the applicant had sustained substantial injury within the meaning of the Proviso to Rule 90 of Order 21, Civil P. C.

3. The first objection was that the notice under Order 21, Rule 66 was not served on the judgment-debtor. The Court below did not accept that the evidence of the applicant that he had not received the notice was sufficient to rebut the presumption of service arising from the alleged signature of the applicant on the postal acknowledgment receipt. The second objection was that the trial court had refused to permit the applicant to give evidence about the valuation of the property to substantiate the objection that he had sustained substantial injury by reasons of the property being sold at a lower price. The appellate court found as a fact that the trial court had refused permission, but justified the refusal on the ground that the objection had not been raised when the sale proclamation was drawnup tinder Order 21, Rule 66. The applicant, therefore, got no opportunity to establish the requirements necessary to get out of the clutches of the proviso to Order 21, Rule 90, Civil P. C.

4. As regards the next objection the finding of the appellate court is that the terms of the sale proclamation were not written by the learned Munsiff himself. Order 21 Rule 110, C. P. C. Provides:

'The result of the enquiry under Rule 66 shall be noted in an order made for the purposes by the presiding judge in his own handwriting.

.....

This provision has been made to guarantee that the trial Court applies its mind to the terms of the sale proclamation, and to show that it had been correctly drawn up. This omission acquires greater significance in the present case as the applicant was denied the opportunity to lead evidence regarding the correctness of, the entries in the sale proclamation.

5. The most important objection was that the property was sold without complying with the provisions of Order 21, Rule 54 (2), Civil P. C. Order 21, Rule 67 (1) says that every sale proclamation shall be made and published, as nearly as may be, in the manner prescribed by Rule 54 (2) of Order 21, which provides, besides other requirements, that a copy of the order should be affixed on the conspicuous part of the property. The lower appellate Court has found as a fact that the sale proclamation was not affixed on the property to be sold, but was affixed on a property nearby. It may be that the property to which the proclamation was affixed was not as good as the property in dispute and the bidders may not have turned up for the purchase of that property. It may also be that at the time of auction the bidders remained under a misapprehension that the property being sold was the property on which the order of the Court was affixed. The purpose of affixation of the notice on the property to be sold is to let the prospective buyers know what property was to be sold. Buyers come for a particular property and if it is not specified by the affixation thereupon of the sale proclamation, the proper persons may not turn up. This would certainly affect the price. It cannot, therefore, be held that the judgment-debtor did not sustain substantial injury by reason of this material irregularity, which in fact amounts to an illegality, in the conduct of sale proceedings. If the applicant had received the opportunity to lead evidence in support of his objections, he might have proved positively that because of this improper procedure he had sustained substantial injury.

6. The Courts below must, in these circumstances, be held to have acted illegally in the exercise of their jurisdiction in not setting aside the sale.

7. Revision is accordingly allowed, the order passed by the two courts below are set aside, the objections of the judgment-debtor are allowed, the sale held in consequence of the impugned sale proclamation is set aside and the proceedings for the sale of the property are directed to be taken afresh. In the circumstances of the case, parties will bear their own costs.


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