Skip to content


Amolak Singh JaIn Vs. Satyawati - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberExecution Appeal Nos. 63 of 1973, 365 of 1977 and 30 and 296 of 1978
Judge
Reported inAIR1980Delhi16; 1980RLR111
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 66(2)
AppellantAmolak Singh Jain
RespondentSatyawati
Advocates: M.S. Chadha,; J.D.R.P. Sharma and; A.P.N.S. Sistani, Ad
Cases ReferredIn Sundrabai Ramchandra Rabade v. Anandrao Haribhau Rabade
Excerpt:
.....debtor for setting aside the sale - it was ruled that the provision under rule 66(2) of the civil procedure code, 1908, was not mandatory - thereforee, the non-service of the notice upon the judgment debtors would render the subsequent sale voidable at the instance of the same - the application for setting aside the sale would come under order 21 rule 90 of the code - as in the instant case, the judgment-debtor was aware of the execution proceedings and there was no allegation of any substantial injury to them by non-issue of notice under rule 66(2) of order 21 of the code - there was no ground available to judgment-debtor to set aside the sale - - kirpa devi were to pay a sum of rupees 20,000 with interest from the property of the deceased, and defendants 8 and 9 as well as..........property at 1, purana quila road, new delhi, by attachment under order 21, rule 46 of the code of civil procedure, an amount of rs. 32,000 due to rani kirpa devi lying in deposit with the managing committee of guru harkishan public school new delhi and also by attachment of rs. 3,000 per month out of rent falling due to the judgment-debtors on the first of every month from the managing committee of guru harkishan public school. by order dated 23rd august, 1973 the managing committee of said school was prohibited from making payment of the amount due to late rani kirpa devi or to any of her legal representatives. the managing committee of the said school accordingly deposited rs. 35,434.81 and the same was ordered to be paid to the decree-holder as per order dated 5th februrary, 1974......
Judgment:

Sultan Singh, J.

(1) These are applications to set aside sale of 51/100th share of property at No. 1, Purana Quila Road, New Delhi auctioned on 26th September, 1977 for Rs. 4,55,000 in favor of Delhi Sikh Gurdwara Management Committee, Delhi. On 24th April 1973, a money decree for Rs. one lac with interest at 12 per cent per annum from the date of payment of this amount i.e. 25th June, 1962 till the date of decree and future interest at 6 per cent per annum from the date of decree till realisation and costs of suit Rs. 4,101.95 p. was passed in suit No. 99 of 1966. Defendant No. 1 was to pay Rupees 40,000 with interest, defendants 4A & 4B and defendants 1 to 3, 6 to 12 as legal representatives of defendant Smt. Kirpa Devi were to pay a sum of Rupees 20,000 with interest from the property of the deceased, and defendants 8 and 9 as well as defendants 6 to 9 as legal representatives of defendant No. 5 deceased were to pay a sum of Rs. 40,000 with interest to the plaintiff. On 2nd August, 1973 execution No. 63 of 1973 was filed for the recovery of the decretal amount by attachment and sale of the said property at 1, Purana Quila Road, New Delhi, by attachment under Order 21, Rule 46 of the Code of Civil Procedure, an amount of Rs. 32,000 due to Rani Kirpa Devi lying in deposit with the Managing Committee of Guru Harkishan Public School New Delhi and also by attachment of Rs. 3,000 per month out of rent falling due to the judgment-debtors on the first of every month from the managing committee of Guru Harkishan Public School. By order dated 23rd August, 1973 the Managing Committee of said School was prohibited from making payment of the amount due to late Rani Kirpa Devi or to any of her legal representatives. The Managing Committee of the said School accordingly deposited Rs. 35,434.81 and the same was ordered to be paid to the decree-holder as per Order dated 5th Februrary, 1974. This amount is stated to have been paid to the decree-holder. Judgment-debtors by order dated 5th February, 1974 were restained from recovering rent from the School and the Managing Committee of the said School was directed to deposit Rs. 2,700 out of rent becoming due to judgment-debtors every month in this court.

(2) The share of the judgment-debtors in the property was stated to be 51/100. Accordingly by order dated 25th September, 1975, 51/100th share in the said property was ordered to be attached. The order prohibiting the judgment-debtors from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge was not served for a sufficiently long time and thereforee by order dated 4th January, 1977 the said prohibitory order was directed to be served by publication which was published in the daily issue of 'Indian Express' dated 29th April, 1977. The judgment-debtors by this notice were also directed to appear in court on 9th May, 1977 at 10-30 A. M. Bawa S. C. Singh, Advocate was appearing in these proceedings as counsel for the judgment-debtors. S. Mohd. Anis, Advocate appeared for counsel for the judgment-debtors on 9th May, 1977 and judgment-debtors were granted time to file objections till 19th July, 1977 on which date the counsel for judgment- debtors again prayed for a week's time to file objections, which was granted but objections were not filed. On 19th July, 1977 counsel for the decree-holder in the presence of counsel for the judgment-debtors also filed an application (EA 213/77) under Order 21, Rule 66 of the Code of Civil Procedure which was ordered to be placed on 29th July for appropriate orders. On 29th July, 1977 the execution case was directed to be placed before the Court on 14th August, 1977 for sale order. On 14th August, 1977 in the presence of counsel for the decree-holder and Mr. Ashok Aggarwal, Advocate for counsel for the judgment-debtors, the Court directed issue of warrant of sale as well as proclamation of sale. The sale was fixed for 26th September, 1977. The decree-holder filed an application (EA 253/77) and on 1.9.1977 in the presence of counsel for the decree-holder and judgment-debtors it was ordered that the proclamation of sale be affixed at the Court house and at the spot by 7th September, 1977. The proclamation of sale was accordingly issued which was affixed at the court house and at the spot and the property was put to sale on 26th September, 1977. The property was purchased by Delhi Sikh Gurdwara Managing Committee Delhi for Rs. 4,55,000. The sale held on 26th September, 1977 was made absolute in the name of the auction purchaser and the sale certificate was ordered to be issued in favor of the purchaser by order dated 2nd November, 1977. It was observed that objections to the auction were not filed by any of the parties within the prescribed period, and consequently the sale was made absolute and sale certificate was ordered to be issued. On 16th November, 1977 judgment-debtors Nos. 1, 2, 5 (a) to 5 (d) and 6 to 9, filed application (EA 365/77) praying that proceedings from the date of filing of application under Order 21 R. 66 of the Code of Civil Procedure be ignored and the alleged sale dated 26th September, 1977 be held to be nullity, on the ground that no notice of application under Order 21, Rule 66 of the Code of Civil Procedure was ever ordered to be issued to any of the judgment-debtors, that terms of proclamation were not settled, that no opportunity was given to the judgment-debtors to file objections against sale, that on 4th August, 1977 when property was directed to be sold, Mr. Ashok Agarwal, Advocate who appeared for counsel for judgment-debtors, was never appointed as an Advocate by any of the judgment-debtors that there was no beat of drums at site and that hand-bills or posters for the sale were not issued, that there was no pasting of any notice on the property or the court house that sale is in fraud of Court and judgment-debtors, that property has been sold for Rs. 4,55,000 while it was worth more than twenty lacs. The decree holder in his reply pleads that the objections having been filed more than 30 days after the sale are barred by time, that application under Order 21, Rule 66 of the Code of Civil Procedure was made on 19th July, 1977 in the presence of counsel for judgment-debtors and thus they had valid notice of the application, and all orders on this application were passed in the presence of counsel for judgment-debtors without any objection, that the various dates for affixation of proclamation of sale at the spot and the court house as well as the date of auction were fixed in the presence of counsel for judgment-debtors, that sale took place on 26th September, 1977 and on 29th September, 1977 time was allowed to judgment-debtors to file objections but objections were not filed and thereforee sale was confirmed on 2nd November, 1977, that hand-bills were issued and there was advertisement by beat of drum, that Rs. 4,55,000 price of 51/100th share of property was reasonable and proper as the judgment- debtors were not in possession of the property, and that the sale was not liable to be set aside. Judgment-debtors also filed an application dated 16th January, 1978 (EA 30/78) praying that the issue of sale certificate be stayed till the decision of the previous application (EA 365/77). The prayer for stay of proceedings was declined by order dated 17th January, 1978. The following preliminary issues were framed on 12th September, 1978 and the matter was adjourned for arguments :

'1. Whether the two objection-petitions E.A. Nos. 365/77 and 30/78 arc within time 2. Whether the two objection-petitions are maintainable under Section 47 and 151 of the Code of Civil Procedure after confirmation of the sale and issue of the sale certificate 3. Whether the auction-purchaser is a necessary party to these objections?'

(3) On 9th October, 1978 arguments were heard in part on the preliminary issues and it was discovered that Article 127 of the Limitation Act, 1963 prescribing 30 days period from the date of sale to set aside sale in execution of decree was amended by Code of Civil Procedure (Amendment) Act 104 of 1976 and for 30 days, 60 days was prescribed to set aside such a sale. Prima facie, it appeared that petition dated 16th November, 1977 (EA 365/ 77) was within time and it was not considered necessary to decide the preliminary issues, and the following additional issues were framed on 9th October , 1978 :

'1. Whether the sale is void as alleged in Ea 365/77 2. Whether the sale is liable to be set aside for any of the reasons mentioned in EAs 365/77 and 30/78 ?

(4) Time was granted to the parties to lead evidence in support of these issues but no evidence was produced and counsel for judgment-debtors made a statement that judgment-debtors did not want to produce evidence in support of their objections. In their application (EA 296/78) an objection was raised by the judgment-debtors that the tenant in the property by order dated 5th February, 1974 was directed to deposit the rent in Court and that no amount is due to the decree-holder and as such the sale was liable to be set aside. It was further prayed that the tenant be directed to file statement of account indicating the amount of rent paid in Court from the date of order dated 5th February, 1974. It was further alleged that the auction-purchaser and the tenant in the property are one and the same person. All these three objection-applications have been heard together.

(5) The question for decision is whether the sale held on 26th September, 1977 is void as no notice under Order 21, Rule 66 (2) of the Code of Civil Procedure was ordered to be issued. The answer depends upon the true interpretation of Order 21, Rule 66 which is as under : (......)

(6) If the issue of notice to the decree-holder and the judgment-debtors before drawing up the proclamation of sale as, required by sub-rule (2) of the Code of Civil Procedure is mandatory the sale would be voidable. In the present case, the judgment- debtors were at all relevant times aware of the execution proceedings and they never filed any objections challenging the facts specified in the proclamation of sale issued vide order dated 4th August, 1977. The judgment debtors on 9th May, 1977 were directed to file objections till 19th July, 1977 They did not file but sought further time to file the same but even then no objections were filed. Application under 0. 21 R. 66 (EA 213/77) was filed in the presence of the counsel for the judgment-debtors on 19th July, 1977 which was adjourned to 29th July, 1977. The counsel for the judgment-debtors was however not present on 29th July, 1977 but when it came up for hearing on 4th August, 1977, counsel for judgment-debtors was present and he did not seek any time to object to the contents mentioned in the application under 0 21 R. 66 of the Code of Civil Procedure. The order fixing the date of sale as 26th September, 1977 was passed in the presence of the counsel for the judgment debtors but even then the counsel for the judgment debtors did not object to it. Again on 1st September, 1977 counsel for the judgment debtors was present when it was ordered that proclamation be affixed at the Court house and at the spot by 7th September, 1977. The conduct of the judgment-debtors from the date when they appeared after the service of the prohibitory order on 9th May, 1977 till the date of auction leads me to the conclusion that the judgment-debtors were never serious to challenge the facts mentioned in the application under 0.21, R. 66 and they were only waiting for the property to be auctioned and to take objections only thereafter. If really there were any objections against the particulars to be specified in the proclamation of sale as required by 0. 21 R. 66 (2) of the Code of Civil Procedure they could have come forward and made a petition to this Court requiring the matters which the judgment debtors wanted to be included in the proclamation of sale. The judgment debtors in their objections have not alleged any irregularity or fraud in publishing or conducting the sale. There is also no allegation of any substantial injury by reason of any irregularity or fraud in publishing or conducting sale. The word 'fraud' has been used in the objections, but no particulars of the fraud are mentioned therein. Order 6 Rule 4 of the Code of Civil Procedure is as under :

'IN all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.'

(7) Under this rule party relying on misrepresentation, fraud, breach of trust, undue influence etc. is required to give particulars of such pleas with dates etc. It is now well established that if particulars are not given such pleas are to be ignored, In Bishnudeo Narain v. Seogeni Rai, : [1951]2SCR548 , it has been observed as follow ;

'THOUGH pleas of undue influence and coercion may overlap in part in some cases they are separable categories in law and must be separately pleaded. In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. In the case of coercion when a Ct. is asked to find that a person was threatened with death it is necessary to give particulars of the nature of the threat, the circumstances, the date, time and place in which it was administered and the name of the person threatening. In the absence of such particulars it would be impossible to reach a proper conclusion.'

(8) No particulars of the alleged fraud are pleaded by the judgment debtors. It is, thereforee, not possible to determine the plea of fraud in the absence of particulars. As regards irregularity in publishing or conducting sale the case of the judgment debtors is that notice under 0. 21 R. 66 (2) was never ordered to be issued. Issue of notice under this rule is a part of publication of the proclamation of sale and as such the sale is to be objected to under R. 90 of 0. 21 of the Code of Civil Procedure which is as under; (- -)

(9) In Sundrabai Ramchandra Rabade v. Anandrao Haribhau Rabade, : AIR1973Bom301 , it has been held that the provision as to notice of auction contained in sub-r. (2) of R. 66 of the Code of Civil Procedure is not mandatory and so non-service of the notice upon the judgment-debtor will only render the subsequent sale voidable at his instance and the application filed by the judgment debtors for setting aside sale will fall under 0. 21 R. 90 and not under S. 47 of the Code of Civil Procedure. Thus it appears that the present objections do not fall under S. 47 of the Code of Civil Procedure but fall only under 0. 21 R. 90 of the Code of Civil Procedure. The sale is also not a nullity. The judgment debtors at all relevant time were aware of the execution proceedings. There is no allegation of any substantial injury to them by non-issue of notice under R. 66 (2) of 0. 21 of the Code of Civil Procedure. The applicants judgment-debtors are to show substantial injury under 0. 21 R. 90 of the Code of Civil Procedure as held in . There is no irregularity in publishing the proclamation of sale. The non-issue of the notice under R. 66 (2) of 0. 21 of the Code of Civil Procedure, thereforee, does not entitle the judgment-debtors to get the sale set aside.

(10) As regards others points that Ashok Aggarwal, Advocate was not authorised, that there was no beating of drum and distribution of handbills and posters, and that property was worth Rs. 20 lacs and sold only for Rs. 4.55 lacs, no evidence has been produced by the judgment debtors on any of these points and hence these are not grounds for setting aside the auction sale.

(11) Another objection of the judgment debtors is that by order dated 5th Feb. 1974 the tenant. Managing Committee of the School was required to deposit the rent and that by said deposit the decree stands satisfied or that the tenants ought to have deposited the same. There is no evidence in support of such pleas. The auction purchaser is a different body than the School. There is no direction to the auction purchaser in the order dated 5th February, 1974. The last contention of the learned counsel for the judgment debtors was that the auction purchaser is the tenant in the suit property. The auction purchaser is Delhi Sikh Gurdwara Managing Committee, Delhi, while the tenant in the property is Guru Harkishan Public School and the injunction order dated 5th February, 1974 is addressed to the Managing Committee of the said school.

(12) I, thereforee, hold that the objection petition (EA 365/77) having been filed within sixty days from the date of sale is within time and that the objection petitions Nos. 30/78 and 296/78 having been filed on 17th January, 1978 and 3rd October, 1978 are barred by time. I further hold that the sale held on 26th September, 1978 if not void but is voidable bute no steps were taken to plead and produce evidence on behalf of judgment debtors to show that there was any irregularity or fraud in publishing or conducting sale. No substantial injury has been proved or pleaded and as such the sale is not liable to be set aside.

(13) Learned counsel for the judgment debtors has referred to authorities which are on the points not pleaded in the objection petition. It is, thereforee, not necessary to consider these authorities.

(14) No ground is thereforee available to the judgment debtors to set aside the sale. As already mentioned the sale was confirmed on 2nd November, 1977, the Sale Certificate has also been issued since then. These objections (365/77, 30/78 and 296/78) are thereforee dismissed with costs. Counsel's fee Rs. 500.00 to be paid to the auction purchaser and another fee Rs. 500.00 to be paid to the decree-holder by the judgment debtors.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //