- (1.) THIS is a judgment-debtors application under section 115 of the Code of Civil Procedure against an order of the Civil and Sessions Judge, Gyanpur (functioning as Civil Judge) confirming an order of the Munsif Gyanpur rejecting his application under Order XXI Rule 89 C. P. C. for setting aside an auction sale in execution of a decree. The applicants property was sold in execution. The sale took place on 18th September, 1963. On 26th September he applied, under Order 21, Rule 89, for setting it aside, and on 12th October deposited the decretal amount plus 5 per cent of the purchase money. An objection was filed by the decree holder that the application was defective because the auction purchaser had not been made a party nor any notice issued to him. The execution court directed the applicant to take steps for the issue of notice to the auction purchaser by 14th November, 1963. The applicant took no steps, and on 29th November 1963, the court rejected his application. This decision was confirmed by the learned Civil Judge in appeal, and the judgment debtor has come to this Court in revision.
(2.) MR . Batuk Lal who appears for the applicant contended that the decision of the courts below is vitiated by a material irregularity. Learned counsel argued that the applicants application under Order XXI, Rule 89 for the setting aside of the sale could not have been rejected by the court on the ground that he had not taken any steps in getting notice issued to the auction purchaser. Learned counsel argued that there is no provision in the Code requiring a judgment-debtor making an application under Rule 89 to implead the auction purchaser as a party or serve notice on him, and all he is required to do is to make the necessary deposits under Rule 89 within 30 days of the date of sale. Learned counsel conceded that the court cannot set aside the sale without giving notice under Rule 89 to all persons affected thereby, but he argued that the duty to issue this notice is on the court and not on the judgment-debtor. Learned counsel cited a series of decisions of this Court and of other High Courts in support of this argument viz. Dip Chand v. Sheo Prasad, AIR 1929 All 593; Vithoba Chimanji v. Mahadeo Kesheorao, AIR 1948 Nag 303; Santosh Bala Debi v. Ramchandra, (1922) 67 Ind Cas 286 (Cal.) and Alladin v. Karimbux, AIR 1955 Raj 51. On the other hand it was contended by Mr. K. P. Singh that the language of Rule 92 clearly implies that notice has to be served by the judgment-debtor and not by the court. He pointed out that the court is not provided with any special fund for defraying the expenses of serving notice of an application, and it is for the litigant in every case where notice is required by statute to serve it on persons whose interests are affected to take the necessary steps.
(3.) THE weight of authority is over-whelmingly in favour of the applicant. In AIR 1929 All 593 the Court held that the duty of giving notice rests on the court or its officials. In (1922) 67 Ind Cas 286 (Cal.) the Calcutta High Court was of the view that it is not incumbent on the judgment-debtor making the application under Rule 89 even to pay any process fee for service of notice of his application on the auction purchaser. The view of the other High Courts is similar.;