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Uma Datt Vs. R.K. Sardana and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberEx. Second Appeal No. 4 of 1969 (treated as Cr.R. 236 of 1969), against order of Addl. Dist. J., Del
Judge
Reported inAIR1970Delhi56
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47, 104 and 115 - Order 21, Rules 54, 66, 67, 68 and 90 - Order 43, Rule 1
AppellantUma Datt
RespondentR.K. Sardana and anr.
Appellant Advocate Bikramjit Nayar, Adv
Respondent Advocate Bakshi Man Singh, Adv.
Excerpt:
.....cannot be set aside c) it was ruled that as per the amendment to rule 90, order 21 civil procedure code, 1908, no sale can be set-aside on any ground that the applicant could have put forward before the sale was conducted - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k......1. this appeal purporting to be filed under section 47 of the code of civil procedure, arises out of an order made in execution proceedings on objections raised by the judgment-debtor under o. 21, r. 90 of the said code. it is obvious that by virtue of section 104 read with o. 43, r. 1, clause (j) of the said code, no second appeal would be competent. the auction purchaser is of course covered by section 47 as amended, but section 2(2) of the civil p.c. excludes from the definition of a 'decree' any adjudication from which an appeal lies as an appeal from an order. the order of the executing court was appealable as an 'order' and, thereforee, could not be considered as a 'decree'.2. faced with this difficulty, the learned counsel for the appellant desired this appeal to be treated as a.....
Judgment:

1. This appeal purporting to be filed under Section 47 of the Code of Civil Procedure, arises out of an order made in execution proceedings on objections raised by the judgment-debtor under O. 21, R. 90 of the said Code. It is obvious that by virtue of Section 104 read with O. 43, R. 1, Clause (J) of the said Code, no second appeal would be competent. The auction purchaser is of course covered by Section 47 as amended, but Section 2(2) of the Civil P.C. excludes from the definition of a 'decree' any adjudication from which an appeal lies as an appeal from an order. The order of the executing Court was appealable as an 'Order' and, thereforee, could not be considered as a 'decree'.

2. Faced with this difficulty, the learned counsel for the appellant desired this appeal to be treated as a revision. There being no objection to it and no injustice caused to anyone in treating this appeal as a revision under Section 115 of the Code, I am treating it as a revision.

3. Turning now to O. 21, R. 90 of the Code, it is obvious that no sale can be set aside on the ground of irregularity or fraud unless, upon facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The only grievance which Shri Bikramjit Nayar has ventilated before me is that the sale has been held before the expiry of 30 days from the date on which the copy of the proclamation was affixed on the court-house of the Judge ordering the sale as contemplated by R. 63 of O. 21.

The other two grievances are that the Court has violated the provisions of O. 21, R. 66 and O. 21, R. 67 read with R. 54 of Civil P.C. All these three grievances, if established- of which I am far from convinced - are, in my opinion, mere irregularities which, in order to enable the judgment-debtor to avoid the sale, must lead to substantial injury. Here, injury means loss which is wrongful. The substantial injury is stated to lie in the property having fetched lesser price than its market value. But assuming the price to be inadequate (and it may be remembered that at Court sales, normally, the property fetches lower than open market price), it must be shown to have been caused as a result of the alleged irregularity. It is well settled that the irregularity and the substantial injury must be correlated with each other as cause and effect, which is, quite clearly, not established in the present case. Injury cannot be inferred from proof of irregularity and mere inadequacy of price is, normally speaking, no ground by itself for setting aside the sale. In the absence of cogent material to the contrary, price fetched at Court sale may well be presumed to be adequate.

Still another, fatal objection the present appellant's grievance is that according to the amendment made by the Punjab High Court to R. 90 of O. 21, Civil P. C., no sale is to be set aside on any ground which the applicant could have put forward before the sale was conducted. It is impossible to argue that in the present case, the judgment-debtor (appellant in this Court and objector in the executing Court) could not have raised this objection before the sale was actually conducted. In any event, there is no such serious infirmity as would justify interference on revision, and indeed even interference on second appeal is somewhat difficult in view of Section 100, Civil P.C. The appeal converted as a revision is, thereforee, completely misconceived. Indeed, all these objection proceedings are, in my view, a futile attempt on the part of the judgment-debtor to postpone the evil day, and, if possible, to save the property which could be effectively done only if he had paid the amount at the proper time. Offer by the appellant in this Court now to pay the amount due is highly belated. This revision thus fails and is dismissed with costs.

4. Petition dismissed.


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