1. This appeal is directed against the order of the executing Court whereby the objection petition filed on behalf of the decree-holder appellant has been dismissed as barred by time.
2. A decree for the recovery of Rs. 4,84,915.29 with further interest at the rate of 11 per cent per annum from October 1, 1976. till realisation and other incidental and miscellaneous charges, was made on October 20, 1978, in favour of the decree-holder appellant and against M/s. Garg Rice & General Mills, Samana. The decree-holder took out execution proceedings and consequently, the attached property was put to Court sale on August 2. 1981. The highest bid offered was for Rs. 4,01.000.00. given by the auction purchase M/s. Sat Guru Sewak Rice Mills through Bharat Lal s/o Banarsi Dass. The Court auctioneer accepted that bid and also got deposited one-fourth of the sale price. The report of the Court auctioneer was to be awaited for August 10, 1981. The decree-holder appellant filed objections for setting aside the Court-sale on September 7, 1981. It sought the setting aside of the sale inter alia on the grounds that the assessed value of the property by its Engineer was Rs. 6,45,000/-. The Court auctioneer did not await till 4 O'clock and accepted the bid of the bidder to the tune of Rs. 4,01,000/-, that many bidders came thereafter to participate in the bid, but the Court auctioneer did not wait for them and that the Court auctioneer, in collusion (with auction purchaser) accepted the bid of Rs. 4,01.000/- whereas the market value of the land and the property was not less than Rs. 6,45.000/- in any case, but owing to the fraud and conspiracy of the auction purchaser and that of the Court auctioneer, the property had been sold at a ridiculously low price. This objection petition was contested on behalf of the auction pruchaser. One of the preliminary objections raised was that the objection petition was barred by time. The executing Court without going into the allegations made in the objection petition, dismissed the same as barred by time as the objections were filed after more than 30 days of the auction sale as provided under Article 127 of the Limitation Act (hereinafter called the Act). Dissatisfied with the same, the decree-holder has filed this appeal in this Court.
3. The learned counsel for the appellant vehemently contended that the objection petition was filed within time because the Court auctioneer was to report to the executing Court on August 10, 1981 and it was for the executing Court either to accept the bid or not to accept the same and, therefore, the objection petition filed on September 7, 1961. was within the period of limitation of 30 days therefrom. In support of the contention, the learned counsel relied upon Jetha Mal v. Punjab and Sindh Bank Ltd., Amritsar. AIR 1932 Lahore 525. It was also contended that since the allegations of fraud and collusion were made in the objection petition. the Court had the inherent jurisdiction to go into the matter and, therefore, the question of limitation, if any, would not arise. In support of this contention. the learned counsel placed reliance on Punjab Mercantile Bank Ltd. v. Sardar Kishan Singh. AIR 1963 Punjab 230. It was also argued that since there was no compliance of Order XXI Rule 66. Code of Civil Procedure, as in the proclamation issued neither the place of auction, nor the time nor the approximate value of the property attached was given, the auction sale was a nullity and should have been set aside. In support of this contention, the learned counsel relied upon Jyotish Chandra. v. Parbati Bala, AIR 1977 Cal 235 and Balwant Rai v. Amrit Kaur, AIR 1961 Punjab 495. On. the other hand, the learned counsel for the auction purchaser contended that the sale had taken place on August 2, 1981, when the bid was accepted and the auction purchaser was directed to deposit one-fourth of the auction money and that being the date of sale, the objection petition filed on September 7, 1981. being not within 30 days thereof, was barred by time under Article 127 of the Act. In support of this contention, the learned counsel relied upon Hoshnak Ram v. Punjab National Bank, AIR 1936 Lahore 555: M. Panchaksharappa v. S. C. P. Co., AIR 1973 Mys 135: Lala Ram v. Bhajani, AIR 1970 A11 398 and Sham Singh v. Vir Bhan, AIR 1942 Lahore 102 (FB).
4. I have heard the learned counsel for the parties and have also gone through the case law cited at the bar.
5. In the facts and circumstances of this case. I am of the considered opinion that the question of limitation should have been decided after framing the issues on merits and allowing the parties to lead evidence. Since in the objection petition allegations of fraud and collusion have been made and in case issues would have been framed on those allegations, then the sale, if the issues were duly proved, could be
set aside being a nullity and in that situation, the question of limitation as such would not have arisen. Of course, under article 127 of the Act. to set aside a sale in execution of a decree, the period of limitation provided is thirty days from the date of the sale and in the present case as the sale had taken place on August 2, 1981. when the bid was accepted and the auction purchaser was directed to deposit one-fourth of the auction money, the view taken by the executing Court on the question of limitation, prima facie may be correct,
but this finding has been given without, framing any issue. Under the circumstances, keeping in view that the
decree holder is a public undertaking and the risk involved is very high, it would be just and in the fitness of
things if the decree-holder is allowed to prove the allegations of fraud and collusion by leading necessary evidence.
6. In this view of the matter, this appeal succeeds and is allowed. The order under appeal is set aside and the case is remanded to the executing Court to decide objection petition afresh including the issue of limitation after framing the necessary issues on merits and allowing the parties to lead evidence. The parities have been directed to appear in the executing Court on 19-3-1984. The records of the case be sent back forthwith.
7. Appeal allowed.