HARBANS KAUR Vs. BALWANT KAUR

JUDGEMENT

(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.