- (1.) THIS is a judgment-debtor's appeal against the dismissal of a petition filed by him under Order XXI, Rule 90 of the Code. The decree-holders had obtained a money decree for Rupees 16,800/- along with interest at the rate of six per cent per annum against Durga Prasad the judgment-debtor.
(2.) ON 5-5-1975 the decree-holders filed an execution application and on this application the court on 14- 5-1975 issued notice under Order XXI, Rule 54 of the Code fixing 19-7-1975. ON 19-7-1975 it was found that the notice was not served and thereafter on 19-7-1975 the court directed the decree-holders to take steps within seven days to serve notice under Order XXI, Rule 66 of the Code. ON 1-10-1975 the decree-holders having taken the steps the notice was ordered to be issued for 6-12-1975. ON 6-12-1975 the court found that the notice had been duly served: No objection having been filed the court directed that the steps be taken to sell the property by auction. It was then discovered that encumbrances had not been mentioned in the notice served on the judgment-debtor and so the court directed a fresh notice under Order XXI, Rule 66 of the Code to be served on the judgment-debtor who was directed to file his objection by 27-2-1976. The court on that date fixed 1-3-1976 for settlement of the terms of proclamation for sale. Before the date fixed on 27-2-1976 an objection paper No. 22-C was filed by the judgment-debtor in which the judgment-debtor stated that there was no encumbrance on the property. ON 1-3-1976 the court held the notice to be sufficiently served on the judgment-debtor. The decree- holders were required to take steps in execution for getting the auction sale done. ON the judgment- debtor's application 22-C the decree-holders were given time till 13-3-1976 which was the date fixed. The case was adjourned to 25-3-1976 and from that date to 20-4-1976. ON 20-4-1976 the court directed that an amendment be made in the sale proclamation and reference to the encumbrance on the property be deleted. The order is in the handwriting of the court on 22-C which runs as under :- "no objection filed. Hence allowed. Necessary amendment be made in the sale proclamation. Issue a writ of sale by auction to Amin fixing 25-9-1976 for auction and 1-6-76 for its return. Put up on 1-6-76 for further orders. Issue sale proclamation accordingly. " On 1-5-1976 an application 24-C was filed by one Madan Mohan Kalani who claimed that the property had been mortgaged to him by the judgment-debtor and that Rs. 5,000/- were due to him towards the principal of the mortgage amount and Rs. 9,800/- towards interest coming to in all Rupees 14,800/- and that this amount was a first charge on the mortgaged property which was being sold. It was prayed in this application that before the bids were started, this charge should be declared. This application was taken up on 27-5-1976 and the court passed an order that the decree-holders be informed. As no copy of the mortgage deed had been filed, the prayer contained in the application was rejected. It is necessary to mention here that on 3-9-1976 another application 32-C was filed by Madan Mohan Kalani with a similar prayer and this time it was accompanied by the copy of the mortgage deed paper No. 31- C. On the application the court passed the order 'file' but the order sheet shows that the application was to be kept on the file and was to be put up when the matter was to be taken up by the court at the time of sale. It is also necessary to mention here that the decree-holders sought the sale of two houses No. 430 and 1259. By application 38-C it was prayed that the house No. 1259 be not sold and that only house No. 430 be sold. This application was allowed and the court ordered that the auction sale be held on 15-9-1977. It directed that the sale proclamation be issued and a warrant for sale be also issued. At this stage on 10-9-1977 the judgment-debtor made an application 42-C in which he prayed that the sale be postponed for three months so that he could negotiate the sale of the house by private sale. In the application it was also stated that if within the time stipulated in the application the decretal amount was not deposited the sale could proceed without a fresh proclamation of sale. The court took up this application on 13-9-1977 and the judgment-debtor was granted time till 17-10-1977 to pay the decretal amount. It further directed that the sale shall remain withdrawn meanwhile. On an application of the judgment-debtor praying for a further time of four months to sell the house in question by private negotiation so that he could pay the decretal amount the court passed the following order on 29-10- 1977:- "allowed time till 5-12-1977 to sell the attached property and deposit the decretal sum failing which the execution shall proceed. " The amount not having been deposited as ordered the court on 15-12-1977 passed an order in the following words:- "execution shall proceed, Issue Parwana for sale. "
(3.) THE matter was taken up on 27-1-1978 on which date the court directed that the warrant of sale should be issued fixing 6-3-1978 as the date of auction sale. On 1-3-1978 an application was moved by Madan Mohan Kalani stating that Rs. 5,000/- towards principal and Rs. 11,500/- towards interest in all making Rs. 16,500 was due to him under the mortgage of the house proposed to be sold by the judgment-debtor. It was prayed that at the time of auction sale this fact should be mentioned. THE court thereupon passed an order on 3-3-1978 in the following words :- "the sale may be held subject to mortgage money together with interest. " The sale took place on 6-3-1978. At that time the Amin mentioned that there was a charge of Rs. 16,500/- under the mortgage on the property sold.;