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Nanhey Khan Vs. Lala Bhagwan Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 713 of 1977
Judge
Reported inAIR1982All75
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 47, 54, 66, 90 and 92
AppellantNanhey Khan
RespondentLala Bhagwan Dass and anr.
Appellant AdvocateSant Prakash, Adv.
Respondent AdvocateB.D. Tripathi, Adv.
DispositionAppeal dismissed
Excerpt:
.....- failure to attach property before its sale by court - order 21 rules 54, 90 and 92 of code of civil procedure, 1908 - suit instituted for recovery of debt - no attachment of property of debtor while suit pending - attachment is to render private alienation void - failure immaterial since there was no private alienation - auction sale by court -held, appeal dismissed and sale by court valid and no further objections sustain. (ii) sustainability of objection - section 47, order 21 rules 90 and 66 of code of civil procedure, 1908 - objection that notice not properly served - objections should be raised at time of drawing up of sale proclamation - not raised - further no objections sustain. - - the property not having been alienated, the sale would be perfectly valid in spite of the..........is a judgment-debtor's second appeal arising out of an objection under section 47 of the code of civil procedure filed by him after the sale of three plots of land, nos. 1134, 1136 and 11.2. the objection was that although the decree-holder had applied for attachment before judgment of all the three plots, only plot no. 11 had been attached and that the other two plots were not attached before their sale in execution proceedings taken by the decree-holder after passing of the decree.the other objections were that the notice under order 21, rule 66 was not properly served and that the sale proclamation was not properly drawn.3. the executing court dismissed the objection as not maintainable under section 47 of the code of civil procedure after the confirmation of the sale without any.....
Judgment:

Deoki Nandan, J.

1. This is a judgment-debtor's second appeal arising out of an objection under Section 47 of the Code of Civil Procedure filed by him after the sale of three plots of land, Nos. 1134, 1136 and 11.

2. The objection was that although the decree-holder had applied for attachment before judgment of all the three plots, only plot No. 11 had been attached and that the other two plots were not attached before their sale in execution proceedings taken by the decree-holder after passing of the decree.

The other objections were that the notice under Order 21, Rule 66 was not properly served and that the sale proclamation was not properly drawn.

3. The executing court dismissed the objection as not maintainable under Section 47 of the Code of Civil procedure after the confirmation of the sale without any objection having been taken under Order 21, Rule 90 of the Code of Civil Procedure. The lower appellate court took the same view and dismissed the appeal.

4. Having heard learned counsel for the appellant, I have been unable to discover any error in the view of the two courts below. As to the first objection, attachement only prevents alienation and if the property sold had not been alienated before the auction sale, the auction sale made by the court would be valid notwithstanding that the property was not attached. Importance of attachment lies in rendering void any private alienation of property after it has been attached by a court. The property not having been alienated, the sale would be perfectly valid in spite of the fact that the procedural law requires that before putting a property to sale, the court should attach it. The object is to prevent the sale made by the court being defeated by any private alienation of the property in the meanwhile. Failure to attach a property before sale is thus an irregularity which becomes material only if the property has been privately alienated before the auction sale made by the court is confirmed. Since the property was not alienated in the present case before the auction sale is confirmed, the sale could not be said to be a nullity or invalid on the ground that two of the plots of land put up for sale had not been attached earlier. As to the point that the notice for hearing under Order 21, Rule 66 was not served, I find that the executing court has clearly stated in the recital of facts in its order that the notice was served on the judgment-debtor personally on 5th September, 1973 and further that the sale proclamation was prepared without any objection from him. It follows that any objection which could or ought to have been taken at the time of the drawing up of the sale proclamation under Order 21, Rule 66 but was not so taken could not be raised even by way of an objection under Rule 90 of Order 21, much less by way of an objection under Section 47 of the Code of Civil Procedure.

5. The appeal fails and is dismissed but in the circumstances I would make no order for costs.


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