Decided on June 25,1981



H.S. Thakur, J. - (1.)This is an application filed by Shri Rishi Kumar Kapila son of Shri Khushi Ram, resident of Kapur Lodge, Solan, under Order 21 Rules 79 and 81 of the Civil P. C. praying that the order for vesting the property in the petitioner and also the direction to the auctioneer be issued, for the delivery of possession of the property purchased by him in the auction. It is stated in the application that Shri Devinder Gupta Advocate, was appointed as auctioneer by this Court and held the auction of the property, mentioned in Annexure 'A' attached to this petition, on 10-5-1981. The petitioner was the highest bidder in respect of certain properties and paid 1/4th of the sale price at the fall of the hammer on that day. The petitioner was allowed 15 days time to deposit the balance of the sale price in Court. The highest bid given by the petitioner was in the sum of Rs. 1,30,000/-. He has paid a sum of Rs. 32,500/- at the fall of the hammer and the remaining amount of Rs. 97,500/- was deposited by him vide challan No. 23 dated 25-5-1981, and the receipt of the same has been issued in his favour. It is claimed by the petitioner that he is entitled to the actual delivery of possession of the property mentioned in the above Annexure,
(2.)Reply to this O. M. P. was filed on behalf of the judgment debtor. It is submitted that the auction was closed at 5.30 P. M. but the bidder in conspiracy insisted on the auctioneer to receive the bids. According to the judgment-debtor the property sold was a working factory installed by him for permanent working as such, and was immovable property, It is further contended that the relief claimed by the petitioner cannot be given as the sale was bad and invalid in view of the provisions contained in Order 21, Rule 72-A of the Civil P. C.
(3.)The execution petition is pending since 15-10-1979. The judgment-debtors did not put in appearance though efforts were made to serve them personally. On 5-12-1979 though the judgment-debtor No. 2 was not found at his residence, but the service was effected on him through his wife Smt. Pushpa Chauhan, Judgment-debtor No. 3 was also served personally on 1-4-1980. All the same, the Court in order to obviate the possibility of any objection regarding a proper service, again effected the service on the judgment debtors by publication in daily Hindi Paper 'Nav Bharat' for appearance in the Court on 17-6-1980. In spite of all this, none of the judgment debtors chose to appear and raise any objection to the execution proceedings. Therefore, the proclamation for the sale of the property of the judgment-debtors by auction, was made in 'The Tribune' of 11-11-1980 and in 'the Indian Express' of 3-121980 as also in the Himachal-Pradesh Rajpatra dated 15-11-1980. The auction was held on the basis of the above proclamation but the same was not confirmed as the price fetched was considered quite low. Again, proclamation for the sale of the property by public auction was made in the English Daily 'Indian Express' Chandigarh Edition, on 10-2-1981 and Dehli Edition on 3-121980 and 10-2-1981. The auction could not be held on the basis of this proclamation, which was fixed for 8-3-1981, as the same was postponed. Thereafter the sale was fixed for 10-5-1981 and proclamation to that effect was made to the 'Indian Express' of 7-4-1981 and 10-4-1981. On 8-5-1981, Shri K. State Bank of Patiala vs. Chohan Huhtamaki (India) Pvt. Ltd. and Ors. (25.06.1981 - ... Page 3 of 4 S. Thapper, Advocate, assisted by other Advocates, appeared for the Judgment debtor, Shri K. S. Thapper, the learned counsel for the judgment debtor, made certain suggestions for the sale of the property. It was suggested by him that the auctioneer be authorised to sell the immovable property i. e., houses, factory, godowns etc., in separate buildings and separate lots, it need be. He further suggested that the mechinery should be sold after the fresh proclamation in which the judgment debtors will also co-operate and prepare a proper list with its functional qualifications including items if any, left out in this proclamation. He, however, stated that this will be without prejudice to the objections already raised in the Objection Petition, This Court on 8-5-1981 ordered that the judgment debtor or his representative, it they so choose, can be present at the time of the auction. It was further observed that the auctioneer shall hold the auction in a manner as far as practicable so as to get the maximum possible price of the property to be sold and that the suggestion of the learned counsel, as far as practicable and possible, be kept in view. A copy of this order was given to Shri Devinder Gupta Advocate, who was appointed the auctioneer.

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