Civil Revision No. 2793 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2793 of 2010 (O&M) Date of decision: 18.08.2010 Harpreet Singh and another ....Petitioners Versus Gurnek Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. K.S. Bassi, Advocate, for the petitiones. Mr. Avnish Mittal, Advocate, for the applicant in CM No.13407-CII of 2010. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of Civil Revision No.2793 of 2010 and Civil Revision No.2961 of 2010 both titled “Harpreet Singh and another Vs. Gurnek Singh and others”, as common questions of law and facts are involved. For brevity sake, facts are being taken from Civil Revision No.2793 of 2010. CM No.13407-CII of 2010 This application, under Order 1 Rule 10 of the Code of Civil Procedure, has been moved by applicant-Shiv Kumar son of Sh. Hari Chand, to be impleaded as respondent No.5. The applicant prays to be impleaded as party, on the ground that he is the auction purchaser, therefore, has interest in the property in dispute. Civil Revision No. 2793 of 2010 (O&M) -2- For the reasons stated in the application, CM is allowed, Shiv Kumar son of Sh. Hari Chand, resident of village and post office Kallar Hari, Tehsil and District Ambala, is ordered to be impleaded as respondent No.5 in this revision petition. CR No.2793 of 2010 This revision petition is directed against the order vide which the learned Executing Court ordered the issuance of sale certificate and warrant of possession in favour of the respondent No.5. The respondent-decree-holder filed a suit for specific performance of agreement to sell against the petitioners-judgment- debtors. The learned Court did not grant decree of specific performance, but granted alternative relief of recovery of Rs.2,60,000/- (Rupees two lac and sixty thousand only) plus interest @ 12%. The objections filed by the judgment-debtors, to the execution of the decree, were dismissed on12.4.2002. In execution of the decree, the entire property of the petitioners, was ordered to be auctioned wherein the share of decree-holder was 1/3rd of the total land. The learned Executing Court had initially attached 1/3rd of the total property i.e. 86 kanals 18 marlas, which was held to be sufficient to meet the decretal amount. The mother of the judgment-debtors Surinderjit Kaur filed objections, in the execution application, on the plea that she also had share in the property, which could not be auctioned, as she was not the judgment-debtor. The objections were accepted, and the property of Surinderjit Civil Revision No. 2793 of 2010 (O&M) -3- Kaur i.e. mother of the petitioners was released from the attachment. The learned Executing Court while releasing the share of Surinderjit Kaur ordered the sale of whole of the remaining property i.e. 2/3rd of 86 kanals 18 marlas. The total claim of the decree-holder was only about 7.00 lacs (Rupees seven lac only) in two cases, whereas the total land belonging to the judgment-debtors i.e. petitioners was ordered to be sold for Rs.23.00 lac (Rupees twenty three lac only). The petitioners challenged the auction. The other ground of challenge was, that the property was purchased by the relatives of the decree-holder, without permission of the Court, thereby the relief which was declined to the decree-holder was indirectly claimed by him through his relatives. The learned Executing Court dismissed the objections. The order was challenged by the petitioners before the learned District Judge along with an application for stay of the operation of the impugned order. The learned appellate Court did not grant stay. Consequently the learned Executing Court, continued with the proceedings and issued sale certificate and warrant of possession in favour of respondent No.5. Mr. Avnish Mittal, the learned counsel for the applicant- auction purchaser, contested the revision petition on the ground, that no stay can be granted to the petitioners, at this stage, as applicant- respondent No.5 was issued a sale certificate by learned Executing Court. It is further the case of the applicant-respondent No.5 that possession of the property was also given and mutation sanctioned. Civil Revision No. 2793 of 2010 (O&M) -4- On consideration, I find force in the contentions raised by the learned counsel for the petitioners. The undisputed facts referred to above show that the attachment and auction was void, on the face of it being violative of Order 21 Rule 66 of the Code of Civil Procedure, which reads as under: - “66. Proclamation of sales by public auction. - (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible- (a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property: Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor any means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs: Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties. (3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the Civil Revision No. 2793 of 2010 (O&M) -5- proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.” The provisions of Order 21 Rule 66 of the Code of Civil Procedure are mandatory in nature. In view of the provisions of Order 21 Rule 66 of the Code of Civil Procedure, it was not open to the learned Executing Court to have attached the whole of the property, belonging to the judgment-debtors for recovery of meagre amount of Rs.7.00 lac (Rupees seven lac only). It was mandatory for the Court to determine whether the property was sufficient to satisfy the decree, and only such part of land could be ordered to be sold which was sufficient to meet the decree. In the case in hand, the learned Executing Court ordered the sale of the property of the petitioners for Rs.23,00,000/- (Rupees twenty three lac only) for recovery of meagre amount of Rs.7,00,000/- (Rupees seven lac only). The auction and sale, therefore, was prima facie void, on the face of it. There was no justification with the learned lower appellate Court to refuse stay in the appeal, in view of violation of mandatory provisions of Order 21 Rule 66 of the Code of Civil Procedure. The contention of the learned counsel for applicant-respondent No.5, that it was not possible to adjudicate on the question raised in this revision petition, as the auction has already been held, and sale in his favour stood confirmed, and possession given, cannot be accepted as the Civil Revision No. 2793 of 2010 (O&M) -6- sale was in violation of Order 21 Rule 66 of the Code of Civil Procedure, thus, void. The subsequent proceedings also deserve to be set aside. The sale, which is void cannot give any right to respondent No.5, in the property. Though, under the normal circumstances while allowing the revision petition, the dispossession of the petitioners could be stayed, pending appeal. However, in this case in pursuance of the order passed by this Court on 13.5.2010, in civil revision No.2961 of 2010 the petitioners have already furnished bank guarantee to secure the decretal amount for payment to the decree-holder. Once the sale is held to be void, no useful purpose would be served in remanding the case back to the learned lower appellate Court for decision of appeal on merit. Therefore, this Court in exercise of powers under Article 227 of the Constitution of India, feels it appropriate to set aside the attachment and sale of the property of the judgment-debtors by accepting the objections filed to the execution of the decree. The petitioners are, however, directed to deposit the decretal amount along with interest till date for payment to the decree-holder, within one month of the receipt of certified copy of this order. The petitioners shall also be liable to pay the cost of auction. Respondent No.5 shall be entitled to withdraw the amount deposited as sale consideration. Respondent No.5 is further directed to hand back the Civil Revision No. 2793 of 2010 (O&M) -7- possession of the property to the petitioners, in case, the actual physical possession, has been handed over to him in pursuance to the sale. This revision petition is allowed. CM No.13408-CII of 2010 This application, under Section 151 of the Code of Civil Procedure, has been moved for vacation of order dated 29.4.2010, vide which the dispossession of the petitioners was ordered to be stayed. In view of the judgment passed by this Court in civil revision No.2793 of 2010, this application has been rendered infructuous. (Vinod K. Sharma) Judge August 18, 2010 R.S.