AMAR DUTT,J - (1.) THIS order shall dispose of Civil Revision 442 of 1999 and FAO 231 of 1999.
(2.) THE revision petition seeks to challenge the order dated 10.12.1998 passed by the Additional Civil Judge (Senior Division) Hoshiarpur rejecting the request of the petitioner for granting one more opportunity to lead evidence and closing his evidence by order. The FAO is directed against an order passed by the aforesaid learned Judge on the same day dismissing the objection petition filed in case. The respondent M/s Shankar Dass Sood and company had filed an execution application on 31.5.1997 against M/s Woodland Paper Board Mills and others for execution of a decree passed against them by the District Judge, Hoshiarpur on 4.1.1993. According to the decree-holder, an amount of Rs. 5,31,679.37 was recoverable in execution of the decree. In the application, it was mentioned that property of the judgment-debtors was already attached during the pendency of a suit under Order 38 Rule 5, CPC, and notice under Order 21 Rule 66, CPC, had also been issued in the previous execution application, which was dropped as unsatisfied. When the application come up for hearing on 5.6.1997, warrant of sale was issued as under : 1. Court door 16.7.1997. 2. Munadi 26.7.1997 3. Auction 7.8.1997. 4. Report 18.8.1997. On 1.8.1997, the warrant of sale was not executed and a fresh warrant of sale was issued returnable for 4.10.1997. On 5.11.1997 again the property was ordered to be auctioned on 18.12.1997 and the report called for 2.1.1998.
(3.) DURING the pendency of these proceedings on 21.9.1997, an objection petition was filed under Order 21 Rule 58, CPC, by the present petitioner, in which it was indicated that M/s Woodland Paper Board Mills and Packages had suffered a decree in Civil Suit 283/81/88 decided on 8.1.1990 from the court of Sh. H.P. Handa, Senior Sub Judge, Hoshiarpur for the recovery of an amount of Rs 18,77,256.93 and the total amount decreed against the judgment-debtors came to Rs. 40,03,366.86 as on 4.12.1990. It was also pointed out that the Bank had filed an execution for recovery of the aforesaid amount by attachment and sale of factory building and land under mortgage with the Bank alongwith Kothi No. 113, New Jawahar Nagar, Jalandhar City, which execution was transferred to the Debt Recovery Tribunal, Jaipur. In view of this, it was asserted that the subject matter of attachment in the execution filed by M/s Shankar Dass Sood and Company was already mortgaged with the Bank on 5.6.1976 and decree dated 6.4.1990 had been passed in favour of the Bank. Thus, the objectors claimed a prior charge by way of mortgage and resisted the execution of the decree passed in favour of M/s Shankar Dass Sood and Company and prayed that the land measuring 15 kanals 1 marla should be released in favour of the Bank. The Bank also moved an application under Order 21 Rule 59, CPC, on 24.9.1997 relying on the circumstances mentioned in the aforesaid application praying that the sale of land which was then fixed for 26.9.1997 should be stayed till the final disposal of the objection application. M/s Shankar Dass Sood and Company filed a reply to the application under Order 21 Rule 58, CPC, as well as Order 21 Rule 59, CPC. The stand taken by it was that the decree- holders were never party to the earlier suit filed by the Punjab and Sind Bank and the property in dispute was attached immediately after the institution of the suit and has been under attachment for more than 7 years. The objectors had not raised any objection to the attachment and now that the property was going to be sold in execution of the decree, it was not open to them to create any hindrance. It was also submitted that there was no entry in the revenue record relating to the property in dispute, being subject to any mortgage with the objectors. A perusal of the records of the trial Court shows that no order was passed on the application under Order 21 Rule 59, CPC, and in the application under Order 21 Rule 58, CPC, no issues were framed. In the meantime, the sale of the property took place on 18.12.1997, whereupon on behalf of the Punjab and Sind Bank, an objection petition was filed under Order 21 Rule 90, CPC, against this sale. In the petition, it was asserted that the sale was liable to be set aside because the objections under Order 21 Rule 58, CPC, had not been adjudicated upon and the auction was conducted without hearing the objections. It was also submitted that the decree-holder had purchased the property fraudulently without bringing to the notice of the Court the pendency of the objection petition. It was also objected that the property in dispute which was equitably mortgaged with the Bank could not have been attached and auctioned in the present execution petition and the Bank would have a prior charge on the property to recover the debts due to it. The sale, according to the petitioners, was void ab initio and a result of fraud in connivance of the auctioneer with the decree-holder and the mandatory provisions of law had not been complied with inasmuch as there was no publication of notice, no munadi as required by law and the property had been sold for shockingly low price. In relation to the objections filed under Order 21 Rule 90, CPC, M/s Shankar Dass and Company filed a reply and on the pleadings of the parties, following issues were framed in the aforesaid application :- 1. Whether there exists any prior charge of the bank in the shape of mortgage over auctioned property, if so, to what effect ? 2. Whether the auction is liable to be set aside ? 3. Relief. Thereafter, all the 3 applications under Order 21 Rule 58, Order 21 Rule 59 and Order 21 Rule 90, CPC, were fixed for evidence on 28.8.1998, 25.9.1998 and 10.12.1998. On 10.12.1998, the executing Court passed the following order :- "No evidence of the objector is present despite the fact that three adjournments have been allowed till date for the evidence of the Objector but the Objector has neither submitted any list of witnesses nor produced any evidence. The Objector appears to be not serious in pursuing the Objection petition. I find no ground to allow any further adjournment. The evidence of the Objector is closed by order. At this stage, the perusal of the file shows that M/s Wood Land Paper has filed an application under Order 21 Rule 90 CPC, while the reply of the same and that of the Objections filed by the bank has not been filed, the same be filed on 23.12.1998." I have learned counsel for the parties. On behalf of the petitioner, it was submitted that a perusal of the two orders would indicate that the executing Court has been misled into passing the impugned orders without realising that in the objection petition under Order 21 Rule 58, CPC, no issues had been framed and in the objection petition under Order 21 Rule 90, CPC, no reply had been filed. The failure of the Court below to frame issues in the application under Order 21 Rule 58, CPC, as well as the error committed by it in framing the issues on 6.6.1998 in relation to the objections under Order 21 Rule 90, CPC, has resulted in grave injustice to the petitioner inasmuch as it has denied the bank a proper adjudication upon both the applications. In these circumstances, it was submitted, that both the orders should be set aside and the court be directed to decide the two applications afresh in accordance with law after affording adequate opportunity to the parties to bring on record such evidence as they may like to produce in support of the stand taken by them. ;