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Harbans Kaur Vs. Balwant Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 426 of 1983
Judge
Reported inAIR1984P& H325
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 21, Rules 66, 66(2), 69, 90 and 92
AppellantHarbans Kaur
RespondentBalwant Kaur and anr.
Cases ReferredGajadhar Prasad v. Bhakta Ratan.
Excerpt:
.....under article 227 of the constitution. - we think that this is an obligation imposed by rule 66(2)(e). in discharging it, the court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they have both valued the property;.....prasad v. bhakta ratan. air 1973 sc 2593 that the mere mention by the executing court in the sale proclamation, of the valuation of the properties sought to be attached as stated by the decree-holder, without assigning any reason for the non-mention of the valuation as put by the judgment-debtor was material irregularity when the judgment-debtor suffered substantial injury by the sale. it was further observed in paragraph 15 of the judgment in the abovesaid case as follows:'moreover, rule 66(2)(e) requires the court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. hence the purchaser should be left to judge the value for himself. but essential facts which have a bearing on the very material question of value of the.....
Judgment:

1. This appeal is directed against the order of the executing Court dated April 5, 1983, whereby the application under Order XXI, Rule 90, Civil P. C. (hereinafter called the Code), to set aside the sale, filed on behalf of the judgment-debtor-appellant was dismissed.

2. Balwant Kaur, decree-holder-respondent, obtained a consent money decree against Harbans Kaur, appellant, for the recovery of Rs. 20,000/- with costs. In execution of the said decree, the property of Harbans Kaur, appellant, bungalow No. 5. Sector 4, Chandigarh, measuring eight kanals, was attached. Earlier, it was to be put to auction on Mar. 9, 1980. The value of the property, as shown in the proclamation under O. XXI, Rule 66 of the Code, was mentioned to be Rs. 2 lakhs. However, on March 7, 1980, the judgment-debtor-appellant filed an application under Order XXI, R. 69 of the Code, for the postponement of the said auction. On that day, i. e., March 7, 1980, a sum of Rs. 12,000/- out of the decretal amount was paid in cash as part payment of the decretal amount. The statement of Shri N. K. Jain, counsel for the decree-holder was also recorded to that effect. He stated that he had received a sum of Rs. 12,000/- as part payment of the decretal amount and that the auction be postponed. In view of the statement of the counsel for the decree-holder, the auction fixed for March 9, 1980 was stayed and the warrant of sale was recalled. Later on, September 13, 1980, was the date fixed for auction. This time, in the proclamation issued under O. XXI, Rule 66 of the Code, the value of the property attached was shown to be Rupees 20,000/- and its copy was given to the judgment-debtor on September 8, 1980, which was produced in Court as, Exhibit JD/1. In the said copy, the value shown of the property attached was only Rs. 2,000/-. However, a day prior to the date of the auction, i. e., on September 12, 1980. the judgment-debtor again moved an application purporting to be under Section 151 read with Order XXI, Rr. 69 and 92 of the Code. In that application, it was prayed that the auction sale fixed for September 13, 1980, be adjourned to some other day in accordance with the provisions of Order XXI, Rr. 68 and 69 of the Code. Reply to the said application was filed on behalf of the decree-holder that very day, i. e. on September 12, 1980, itself. No orders were passed by the executing court on the said application though the auction was to take place on September 13, 1980. However, on September 27, 1980, the executing Court passed the order to the effect that the application had become infructuous after the sale and as such that application needed no further action and be filed. The judgment-debtor filed the application under Order XXI, Rule 90 of the Code, dated October 11, 1980, in which it was stated inter alia that the terms of the proclamation were settled at the back of the judgment-debtor without notice to her in violation of sub-rule (2) of Rule 66 of Order XXI of the Code; the value of the property was grossly undervalued and that the encumbrances thereon were also not mentioned. That application was contested on behalf of the decree-holder. On the pleadings of the parties, the executing Court framed the following issues on November 29, 1980:

1. Whether the sale is liable to be set aside for the reasons mentioned in the objection petition moved by the judgment-debtor?

2. Relief.

The learned executing Court came to the conclusion that in the present case, there was nothing on the record to establish that the judgment-debtor has sustained a substantial injury by reason of any irregularity or fraud and, therefore, issue No. 1, was decided against her. As a result, the objection petition was dismissed. Dissatisfied with the same, the judgment-debtor has filed this appeal in this Court.

3. The learned counsel for the appellant contended that the mandatory provisions of Order XXI, Rule 66 of the Code, were not complied with. In any case, in the proclamation issued earlier for March 9, 1980, the value of the property was shown to be Rs. 2 lakhs, whereas in the proclamation issued for September 13, 1980, the value of the property was shown to be only Rs. 20,000/-, whereas in the copy of the said proclamation given to the judgment-debtor, the value of the property was shown to be only Rs. 2,000/-. Thus, argued the learned counsel, it was a material irregularity as contemplated under Order XXI, Rule 90 of the Code and that on that ground alone, the sale was liable to be set aside. On the other hand, the learned counsel for the decree-holder-respondent, contended that in view of the proviso to Rule 90 of Order XXI of the Code, as added by this Court, no such objection was tenable after the auction had already taken place. In any case, argued the learned counsel, the sale could not be set aside on any irregularity as the same was not material. In support of the contention, the learned counsel relied upon Margaret A. Skinner v. Empire Store, Connaught Place, New Delhi, (1976) 78 Pun LR 64; Mal Singh v. Moga Central Co-operative Bank Ltd. (1982) 84 Pun LR 494 and Radhy Shyam v. Shyam Behari. AIR 1971 SC 2337.

4. After hearing the learned counsel for the parties, and going through the relevant record, I am of the considered opinion that the sale is liable to be set aside on the ground of material irregularity in conducting the same. Admittedly, the proclamation issued for March 9, 1980, the value of the property attached was shown to be Rs. 2 lakhs whereas in the proclamation issued for September 13, 1980, the value of the property was shown to be Rs. 20,000/-. Ultimately, the property was sold for Rs. 32,000/-. On these facts, it could not be successfully argued on behalf of the decree-holder that it was not a material irregularity in conducting the sale. The proviso added by this Court to Rule 90 of Order XXI of the Code, reads,--

'Provided further that no sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted.'

In the present case, the judgment-debtor did move that application on September, 12, 1980. It is unfortunate that no orders were passed thereon that day. The only order thereon was made on September 27, 1980, when the sale had already taken place. The application was dismissed as having become infructuous. If the property, according to the decree-holder herself was worth Rs. 2 lakhs as shown in the proclamation issued for March 9, 1980, how the same could be reduced to Rs. 20,000/- later on when the proclamation was issued for September 13, 1980. It was held in Gajadhar Prasad v. Bhakta Ratan. AIR 1973 SC 2593 that the mere mention by the executing Court in the sale proclamation, of the valuation of the properties sought to be attached as stated by the decree-holder, without assigning any reason for the non-mention of the valuation as put by the judgment-debtor was material irregularity when the judgment-debtor suffered substantial injury by the sale. It was further observed in Paragraph 15 of the judgment in the abovesaid case as follows:

'Moreover, Rule 66(2)(e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence the purchaser should be left to judge the value for himself. But essential facts which have a bearing on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66(2)(e), Civil P. C., The Court has only to decide what all these material particulars are in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the Court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they have both valued the property; and these do not appear fantastic. It may usefully state other material facts, such as the area on land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably be expected to affect valuation. What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question.'

The said observations are very relevant to the fasts of the present case. The rulings relied upon by the learned counsel for the decree-holder-respondent, have no bearing on the facts of the present case. As a matter of fact, it will be a question of fact in each case as to whether the irregularity in conducting the sale is material or not and whether it has caused substantial injury to the applicant. So far as the facts of the present case are concerned, they speak for themselves. The property which was valued for Rs. 2 Lakhs by the decree-holder herself could not be reduced to Rs. 20,000/- later on. There is absolutely no explanation on the part of the decree-holder for this conduct.

5. For the reasons recorded above, this appeal succeeds and is allowed. The order of the executing Court, dismissing the application under Order XXI, Rule 90 of the Code, is set aside, and consequently, the sale held on September l3, 1980, is held illegal. The executing Court will issue fresh proclamation after assessing the value of the property in the presence of both the parties. The parties have been directed to appear in the executing Court on April 18, 1984. The records of the case be sent back forthwith.

6. Appeal allowed.


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