PRAKASH NARAIN, J. - (1.) The Lakshmi Commerical Bank Ltd., filed a suit against M/s. American Rubber Mills Co., a partnership concern, Harnam Singh Anand, Sunder Singh Anand Ajit Singh Anand, Ajit Singh Anand, Bhola Nath Jain etc. for recovery of Rs. 48,796,08 with costs and future interest. It prayed for a decree for this amount against the defendants jointly and severally by sale of certain stocks pledged with the plaintiff and by sale of certain properties mortgaged with the plaintiff mentioned in paragraphs 9 and 12 of the plaint. A personal decree was also sought against the defendants jointly and severally for any amount that may be left recoverable after sale of the pledged and mortgaged property. This suit was compromised and this court passed a compromise decree in favour of the plaintiff and against the defendants on 26-11-1968. Inter alia, the decree passed by this Court reads as under: "............This Court doth pass a preliminary decree under Order XXXIV, Rule 4 of the Code of Civil Procedure and DOTH ORDER that Sarvshri Harnam Singh Anand. Surinder Singh Anand and Ajit Singh defendants 2 to 4 herein do pay to Lakshmi Commercial Bank Ltd. plaintiff herein the sum of Rs. 22,639.89 (Rupees twenty two thousand six hundred thirty nine and eighty nine paise) with proportionate costs incurred by the plaintiff herein in this suit as taxed by the taxing officer of this court and noted in the margin hereof AND THIS COURT by and with the consent of the parties concerned DOTH ALSO ORDER that a sum of Rs. 4000.00 (Rupees four thousand) have been paid in cash and Rupees 1000.00 (Rupees one thousand) through a cheque on 18-9-1968 the balance amount due shall be payable by monthly instalments of Rs. 1000.00 (one thousand) each commencing from October 1968 AND THIS COURT DOTH by and with the consent of the parties concerned FURTHER ORDER that in the event of three defaults consecutive or otherwise in the payment of instalments the balance amount shall become recoverable in lump sum AND THIS COURT DOTH by and with the consent of the parties concerned FURTHER ORDER that till the entire amount due from the said defendants to the plaintiff is paid the factory building situated on plot No. 1/359, Shahdara, Delhi, along with all the machinery, fittings, fixtures, furniture, tools, implements, stores, chemicals and materials shall remain mortgaged with the plaintiff and in the event of default the plaintiff shall have the right to recover the total amount that may be due by applying to the court for a final decree that the mortgaged property or a sufficient part thereof be sold and for the purpose of such sale the plaintiff shall produce before the court or such officer as it appoints, all documents in its possession or power relating to the mortgaged property; and that the money realised by such sale shall be paid into court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable by the said defendants to the plaintiff and that the balance, if any, shall be paid to the said defendants or other persons entitled to receive the same; and that if the money realised by such sale shall not be sufficient for payment in full of the amount due from the said defendants the plaintiff shall be at liberty to apply for a personal decree against the said defendants for the remaining amount. Plot No. 9, Punjabi Bagh, Delhi standing in the name of Shri Sunder Singh Anand and which was equitably mortgaged with the plaintiff shall Stand redeemed from mortgage and the title deed of that property shall be returned to Sunder Singh Anand. AND THIS COURT DOTH FURTHER ORDER that Sarvshri Bhola Nath Jain and Shiv Kumar Jain defendants Nos. 5 and 6 herein do pay to the plaintiff bank herein a sum of Rupees 26,156.19 p. (Rupees twenty six thousand one hundred fifty six and nineteen paise) with interest at the rate of 12 (twelve) per centem per annum on the said sum from 11th March 1968 (the date of institution of the suit) till realisation of the amount together with proportionate costs incurred by the plaintiff bank herein in this suit as taxed by the taxing officer of this court and noted in the margin hereto AND THIS COURT DOTH FURTHER ORDER that a sum of Rs. 2156.19 p. (Rupees Two thousand one hundred fifty six and nineteen paise) being paid by Shri Shiv Kumar defendant herein through a cheque on 19th September 1968 the balance due shall be payable by monthly instalments of Rupees 1500.00 (fifteen hundred) each the first instalment being payable by the 15th of each successive month till the entire amount due from the said defendants is paid AND THIS COURT DOTH FURTHER ORDER that the instalments so paid shall be first adjusted towards the stock pledged with the plaintiff though the said defendants shall also have the right to have the said stock released in four instalments on making payments in the stock account within eight months from the date of decree; one fourth of the stock to be released on payment of one fourth of the value of the stock pledged AND THIS COURT DOTH FURTHER ORDER that in the event of default consecutive or otherwise in the payment of any three instalments the entire balance due from the said defendants shall become payable forthwith in lump sum AND THIS COURT DOTH FURTHER ORDER that till the entire amount due from the said defendants to the plaintiff is paid the property measuring 510 square yards at Shahdara, Delhi, registered in the name of defendant No. 1, on 29-9-1957, the property bearing plot No. 18 in Friends Colony Shahdara, Delhi registered in the name of defendant No. 1, on 28-7-1959 and the pledged goods shall remain mortgaged with the plaintiff and the plaintiff shall have the right to recover the total amount that may be due by applying to the Court for a final decree that the pledged stock and the mortgaged property or a sufficient part thereof be sold and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in its possession or power relating to the pledged stock and the mortgaged property; and that the money. realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable by the said defendants to the plaintiff and that the balance, if any, shall be paid to the said defendants or other persons entitled to receive the same; and that if the money realised by such sale shall not be sufficient for payment in full of the amount dual from the said defendants the plaintiff shall be at liberty to apply for a personal decree against the said defendants for the remaining amount ............"
(2.) On 14th May, 1970 the Lakshmi Commercial Bank Ltd. filed execution No. 37 of 1970 and prayed that the court give notice of the execution application to the judgment-debtors and have the proclamation drawn up in terms of R. 66, of Order 21 of the Code of Civil Procedure for sale by auction of properties mentioned in Annexure A to the execution application and further prayed that the proceeds of the auction sale be paid to the decree-holder and in case of short-fall the decree-holder shall take steps against the person and other Properties of the judgment-debtor. This Annexure A comprised of two parts; one sets out various machinery and the other "all foundations, fixtures, office and factory building built at the site." Notice was ordered to the judgment-debtors. They could not be personally served but on 20-10-1970 B. C. Misra, J. ordered that service of notice of the application effected on the judgment-debtors by affixation amounts to sufficient service. As the judgment-debtors had not put in appearance they were proceeded ex parte and the Registrar was directed to settle the proclamation of sale. On 3-11-1970 notice of the proposed proclamation as required by Rule 66 (2) of Order 21. Civil Procedure Code was ordered to be given to the judgment-debtors. This notice was also served by affixation. As there were no objections from the judgment-debtors the proclamation of sale was settled on 11-12-1970. On 16-2-1971 an order was passed authorising the court-auctioneer to break open the locks of the premises in order to sell the mortgaged property in pursuance of the previous orders of the Court. The properties were auctioned. Several objection petitions were filed on behalf of various parties including those by judgment- debtors Nos. 1 to 4. After getting the reply on behalf of the decree-holder the following preliminary issues were settled by me on 4-5-1971 on the objections filed by defendants Nos. 1 to 4 in I. A. 521 of 1971: "1. Whether it was necessary to draw up a final decree before ordering the sale by auction of the property which has been auctioned? 2. Whether objections under O. 21, Rule 90, Civil Procedure Code cannot be filed in respect of auction sale of movable property?"
(3.) I have heard Mr. B. T. Singh, learned counsel for judgment-debtors Nos. 1 to 4 (Objectors). Mr. Bikram Singh, learned counsel for the decree- holder and Mr. Kishori Lal Mehra for the auction-purchaser.;