- (1.) As a consequence of filing of Original Suit No. 452 of 1967, Smt. Indra Rani (respondent No. 3), hereinafter referred to as the decree-holder, obtained a money-decree against Sri Nepal Singh, hereinafter referred to as the judgement-debtor. Vide Execution Case No. 47 of 1971 she put the said decree in execution by attachment and sale of a house situate in the town of Goverdhan in Mohalla Danghat in the district of Mathura. The first auction was to be held on 6th May, 1972. Before the same could be held, the judgement-debtor filed an application dated 4th May, 1972 stating therein that he is prepared to pay the entire decretal amount within a period of two months and in case he failed to do so, the attached property may be sold. The judgement-debtor could not pay the decretal amount within the aforesaid time and, therefore, he moved another application dated 5th March, 1973 along with an undertaking that in case he fails to pay the amount within the time set out by the court, the judgement-debtor waives his right of having a fresh proclamation. The said application was also granted by the execution court but the judgement-debtor again failed to pay the decretal amount within the prescribed time. Consequently the sale took place on 20th December, 1976 in favour of Sri Vidya Bhan Prakash, hereinafter referred to as the petitioner.
(2.) The property covered an area of 35' X 20' and was sold for a sum of Rs. 15,000/- at the said auction sale. Admittedly the said amount of Rs. 15,000/- was deposited by the petitioner in time. A copy of the Fard Nilam has been filed by the petitioner as Annexure-1 to the writ petition and a copy of the objection dated 17th January, 1977 filed by the judgement-debtor under Order XXI Rule 90 of the Code of Civil Procedure to set aside the said auction sale has been filed as Annexure-2 to the writ petition. The parties led oral evidence in regard to the objection. The main ground set out in the aforesaid objection dated 17th January, 1977 was that in fact, no auction had taken place on 20th December, 1976 as was stated to have been done and that the bid was accepted for inadequate price. On a consideration of the rival submissions of the parties and on perusal of the oral evidence led in that regard by the parties, the execution court vide its order dated 14th September, 1979 rejected the objection of the judgement-debtor filed under Order XXI Rule 90 of the Code of Civil Procedure. The execution court held that since the judgement-debtor had himself waived his rights regarding issue of a fresh proclamation, he cannot raise any objection in regard to the same. The court also held that the theory set up by the judgement-debtor that no auction had taken place was incorrect and that the said objection is designed to delay the realisation of the decretal amount on one ground or the other and that in the past the judgement-debtor had succeeded in getting the auction postponed on one ground or the other. The court held that in fact the auction had taken place in accordance with law and that there has been neither any material irregularity nor any fraud in publishing or conducting the sale nor there has been any substantial injury by reason of such irregularity or fraud. Aggrieved against the said order passed by the execution court, the judgement-debtor filed Misc. Civil Appeal No. 122 of 1979 which was ultimately allowed by the Second Additional District Judge, Mathura vide his judgement dated 13th May, 1981. The learned Additional District Judge did not agree with the contentions raised on behalf of the judgement-debtor that no auction sale was made on the spot and the people present to participate in the bids were misinformed. Although the learned Additional District Judge omitted to take into account the aforesaid earlier undertaking of the judgement-debtor as mentioned by the trial court in its order yet on a consideration of the record and after hearing learned counsel for the parties, he recorded a finding that there has not been any irregularity or fraud in publishing or conducting the sale as contemplated by Order XXI Rule 90 of the Code of Civil Procedure. Moreover, according to the said lower appellate court, the judgement-debtor had not raised any objection before the official appointed for conducting the official sale. Alternatively it also held that mere irregularity or fraud in publishing or conducting the sale will not justify setting aside of the sale unless the court feels satisfied that the judgement-debtor had sustained substantial injury. Ultimately the lower appellate court also recorded a finding of fact that on the facts of this case no substantial injury due to the irregularity or fraud in conducting the sale has taken place. After recording the aforesaid finding of fact. the lower appellate court has curiously enough proceeded to consider the question of insufficiency of price and on the basis of the Fard Nilam, a copy of which has been filed as Annexure-1 to the writ petition, and on the ground that the estimated price of the attached house on 6th May, 1971 as shown in the affidavit of the decree-holder was at Rs. 6000/the appellate court somehow came to the conclusion that the price of Rs. 15000/- fetched at the auction sale was inadequate. The lower appellate court, however, held that the aforesaid price fetched at the auction sale was because of the result of some insincere effort on the part of the Amin. The lower appellate court, therefore, came to the conclusion that the price fetched at the aforesaid auction was inadequate. It accordingly allowed the appeal and set aside the auction dated 20th December, 1976 with directions to the execution court to take fresh steps towards the auction of the sale. In the operative part of its order, it further directed the Amin to be more sincere towards his job. Aggrieved against the aforesaid judgement dated 13th May 1981 passed by the Second Additional District Judge, Mathura, the auction purchaser has filed the present writ petition in this Court and has challenged the aforesaid order.
(3.) I have heard learned counsel for the parties at great length.;