- (1.) S. U. Khan, J. At the time of arguments, no one appeared on behalf of the contesting respondents, hence only the arguments of the learned Counsel for the petitioner were heard.
(2.) RESPONDENT No. 3 Asa Ram since deceased and survived by legal representatives instituted a suit for recovery of Rs. 5,000/- against respondent No. 4, Shiv Nandan being O. S. No. 58 of 1975. Agricultural land of defendant was attached before judgment on 27-7-1975 by the Trial Court. In spite of the attachment, the defendant sold half of the attached property to the petitioner and remaining half to his wife through registered sale-deed dated 30-7-1975. The suit was decreed on 20-10-1975. Thereafter, application for execution was filed. The decreetal amount, at that time, was Rs. 6,825. 50. Execution Case was registered as Execution No. 20 of 1978, Asa Ram v. Shiv Nandan. Execution was sought through sale of the attached property. The agricultural property was sold in auction for Rs. 16,000/ -. Vijay Pal Singh, respondent No. 2 was the auction purchaser. Auction took place on 7-8-1979. Thereafter, objections were filed by the petitioner under Order XXI Rules 66, 89, 90 and 93 and Sections 47 and 151, C. P. C. Objections were filed on 25-3-1980 and were registered as Misc. Case No. 34 of 1980. Executing Court/civil Judge, Rampur, allowed the objections through order dated 19-5- 1981 and set aside the auction. Trial Court held that in case only that portion of the land had been auctioned, which was sold by the judgment-debtor to his wife, then entire decree would have been satisfied. It further held that in the proclamation of sale initially decree-holder deliberately undervalued the property and did not show any charge on the said property. Decree-holder gave the valuation of the property to be Rs. 14,000/- in the proclamation of sale. During the pendency of proceedings, wife of judgment-debtor had died and the property sold by him to his wife came again to him through succession. By reading the judgment of the Trial Court, it is apparent that interest of justice was paramount in the mind of the learned Judge. It is mentioned in the order of the Trial Court that auction purchaser had filed an application that he did not want to take the land, which he had purchased in auction and he wanted refund of his money. Against the order of the Executing Court dated 19-5-1981 cancelling the auction, auction purchaser and decree-holder filed appeal. The appeal was registered as Misc. Civil Appeal No. 87 of 1981. A. D. J. , Rampur through order dated 12-3-1984 allowed the appeal and set aside the order of the Trial Court and dismissed the objections of petitioner. This writ petition is directed against aforesaid order of the Appellate Court dated 12-3-1984.
(3.) THE Appellate Court approved the findings of the Trial Court/executing Court. However, the Appellate Court allowed the appeal only and only on the ground of limitation. It held that the objections filed by the petitioner were barred by time. It was contended before the Appellate Court by the petitioner that the plea of limitation was not taken before the Trial Court by the auction purchaser. In that regard, the Appellate Court held that plea of limitation could be taken even for the first time before the Appellate Court in view of Section 3 of the Limitation Act. THE Appellate Court held that objections ought to have been filed within 60 days from the date of sale. Argument of petitioner that sale was nullity and his objections were under Section 47, C. P. C. , also for which limitation of two months did not apply, was also noticed by the Appellate Court. THE Appellate Court in that regard mentioned that the petitioner in his objections did not plead that the sale was nullity and void, he also did not pray for declaration that the sale was void and he had only prayed to have the auction sale set aside under Order XXI, Rule 90, C. P. C. and other Sections on the ground of irregularity in attachment and sale. Language used in objections is not conclusive. If the allegations made in the objections may fall under Section 47, C. P. C. , then application will have to be treated under the said Section. Moreover, Section 47, C. P. C. had also been mentioned at the top of the application as one of the provisions under which application was being filed. Under Order XXI, Rule 64, C. P. C. , it is provided that the executing Court may order that attached property or such portion thereof as may seem necessary to satisfy the decree shall be sold. Provisions of Order XXI, Rule 64, C. P. C. are mandatory and their violation renders the sale nullity. Under the said provision, if by auctioning part of the property, decreetal amount may be realized, then sale of the whole property is illegal. In this regard reference may be made to the authority reported in Balakrishnan v. Malaiyandi Konar, 2006 (2) JCLR 674 (SC) : AIR 2006 SC 1458.;