J.V. Gupta, J. - (1.) THIS appeal is directed against the order of the executing Court dated October 31, 1985, where by the objections filed under Order XXI Rule 90, Code of Civil Procedure, (hereinafter called the Code) by the D. H. for setting aside the sale have been dismissed.
(2.) THE relevant facts are that the State Bank of India obtained the decree dated April 7, 1976, against M/s Rocky Tyres through S. P. Gandhi, the sole proprietor, for a sum of Rs. 5,43,239.28 out of which a sum of Rs. 17,840/ - was paid by the judgment -debtor. The decree -holder moved an application for attachment and sale of movable and immovable property of the judgment -debtor. After long proceedings, the property was attached vide order dated August 13, 1976, and the actual attachment was made on August 24, 1976, which included the plot No. 360 -61, Industrial Area, Chandigarh, the building constructed thereon and the machinery installed therein. After the attachment, the machinery being the movable property, was handed over on supardari to one Miss Raj Rani. After the said attachment, the judgment -debtor leased out the said premises to M/s Jaysons Industries on March 14, 1977 through Jaswant Rai Jain on a monthly rent of Rs. 3,500/ -. June 15, 1979, was the date fired for the auction of the property attached. At that time, it was revealed that the machinery attached in execution of the decree was also attached earlier in execution of some other decree and was sold and was, therefore, no more available for auction sale. However, since the decree -holder agreed that only the building and the land be put to auction, the auction did take place on June 15, 1979, as published. The said property was purchased by Mrs. Manju Rani, Rohit, Mandeep Jain, Neeraj and Ajit Jain jointly The objection petition under Order XXI Rule 90 of the Code, was filed on behalf of the decree -holder Bank on July 16, 1979. The said petition was dismissed by the executing Court on September 6, 1979, summarily without framing any issues and allowing the parties to lead evidence. Dissatisfied with the same, the decree -holder Bank filed F. A. O. No. 597 of 1979 in this Court which was ultimately allowed vide this Court order dated February 6, 1981, wherein the order of the executing Court dated September 6, 1979, dis missing the objection petition summarily was set aside and the, case was sent back to the executing Court for deciding the matter afresh in accordance with law after framing necessary issues and allowing the parties to lead evidence. During the pendency of the said appeal, the counsel for the auction -purchasers except Ajit Jain, (son of Jaswant Rai Jain, the lessee) made a statement at the bar that the appeal be accepted and the order sanctioning the auction -sale be set aside. Para graph 3 of the said judgment reads as under: It may be mentioned at the very outset, that though in the executing Court all the auction -purchasers contested the objection petition, but in this Court, only Ajit Jain, Respondent No. 7 is con testing the appeal. The counsel for the other auction -purchasers has made a statement at the bar that the appeal be accepted and the order sanctioning the auction -sale be set aside. Thus, the auction purchasers, who have four -fifth share in the property auctioned, are not in favour of the order sanctioning the sale in their favour.
(3.) AFTER the case was remanded to the executing Court, the said four auction -purchasers on whose behalf the statement was made in this Court in F. A. O. No 597 of 1979, that the appeal be accepted and the order sanctioning the auction -sale be set aside, also moved an application dated August 29, 1985, purporting to be under Order XXI Rule 91 of the Code in the executing Court, for setting aside the auction -sale and refunding the purchase money. Not only that, they also moved another application which is still pending adjudication for refund of the auction -money deposited by them.;