YOGESHWAR DAYAL, J. - (1.) SPECIAL leave granted.
(2.) WITH the counsel of learned counsel for the parties the appeal itself was heard and is being disposed of. This appeal has been filed by Satyanarain Bajoria and another, judgment-debtor, against the order of the High Court dated 8/04/1986 whereby the High Court dismissed Civil Revision No. 385 of 1986 filed by the judgment-debtor against the order dated 28/11/1985 passed by the Additional District & Sessions Judge-VI, Munger, who had accepted the appeal filed by the respondents,/ decree-holder against the order of the executing court dated 19/07/1984 passed in Misc. Case No. 28 of 1978 under Order 21, Rule 90 of the Code of Civil Procedure whereby the trial court set aside the auction sale in Money Execution Case No. 19/55 of 1968. It appears that the judgment debtor was granted a loan of Rs. 4,000.00- and a decree for Rupees 8,256.05 ps. was passed against the judgment debtor in 1964. In November, 1964 the judjudgment-debtor deposited Rs. 8,000.00 in the trial court. On 4/01/1965 the judgment debtor deposited a further sum of Rs. 391.55 and thought that he had satisfied the decree. On 29/11/1965 the decree-holder made an application claiming another sum of Rs. 350.00. This application was allowed but thereafter he got his execution application dismissed for default. Thereafter for about three years the decree-holder remained silent and in 1968, filed another Money Execution Case No. 19/55 of 1968 in the executing court claiming another sum of Rs.350.00 plus interest. In execution of this application, on 12/09/1978 the judgment-debtor's property i.e. land, situated in the market, consisting of an area of one decimal was sold in auction f or Rs. 1,500.00 and was purchased by the decree-holder himself. Before the expiry of the period of limitation for filing objections, namely 60 days as provided under Article 127 of the Limitation Act, 1963, as amended by Section 98 of the Amendment Act, 1976, to set aside auction sale in court, the executing court for non filing of objections, confirmed the sale on 8/11/1978.
(3.) THE appellants/ Judgment-debtor on 11/11/1978 i.e. within 60 days, on coming to know of the sale, filed a petition under Order 21 rule 90 of the Code of Civil Procedure for setting aside the sale. THE plea of the judgment-debtor in the application for setting aside the sale was that he had no knowledge of the case whatsoever and all the steps had been taken ex parte and without the knowledge of the judgment-debtor by concealing facts. No process had been served on the judgment-debtor and reports have been obtained in collusion with the process peon. It was pleaded that the amount of the decree had been satisfied by the judgment-debtor and nothing left unsatisfied. THE decree-holder, had suppressed all notices, summonses and got served "balabala" i.e. merely on papers without actual service. It was also pleaded that the notice published in the local paper showing incorrect number of case and incorrect name of the court was to misguide the judgment-debtor and due to this irregularity and fraud played, the judgment-debtor could not contest the case in time and now it transpired from the order sheets of the case that the decree-holder had got the property of the judgment-debtor sold. The court, who dealt with the application under Order 21 rule 90 of the Code of Civil Procedure noticed two points for decision. First, whether there had been irregularities or fraud in conducting the said sale and second whether the judgment-debtor had suffered substantial injury by reason of irregularity or fraud. The court also noticed that the point of limitation had not been raised.;