-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 421 OF 2008 APPEAL FROM ORDER NO. 421 OF 2008 APPEAL FROM ORDER NO. 421 OF 2008 ALONGWITH ALONGWITH ALONGWITH CIVIL APPLICATION NO. 493 OF 2008 CIVIL APPLICATION NO. 493 OF 2008 CIVIL APPLICATION NO. 493 OF 2008 Alka Avinash Khandhare .. Appellant. V/s. Raghunath Ramchandra Savardekar & Anr. .. Respondents. --- Mr. Vinod Wagh for the Appellant. Mr. S.K.Kamble for the Respondent no.1. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 P.C. : P.C. : P.C. : 1. By the order dated 10th of October, 2008 fresh notice was issued to respondent no.2 with intimation that the matter will be disposed off finally at the stage of admission. The respondent no.2 is served by paper publication and the service affidavit is filed to that effect by the appellant. 2. Heard Mr.Wagh, the learned counsel for the appellant and Mr. S.K.Kamble, the learned counsel for the respondent no.1. None appears for the respondent no.2 though served. -: 2 :- 3. Admit. 4. By consent, the Appeal from Order is taken up for final hearing and disposal. 5. The respondent no.1-Raghunath R. Savardekar is the original decree holder and the respondent no.2- Rajendra R. Dingorkar is the judgement debtor. The respondent no.1 had filed the special civil suit no.53 of 2003 against the respondent no.2 for recovery of amount of Rs.1,66,300/-. The same was decreed and thereafter the respondent no.1 put that decree in execution in special Darkhast No.3 of 2006. 6. The suit property, namely, Room No.2, Laxmi Niwas, Durganagar, Thankarpada, Agra Road, Kalyan (W), Dist. Thane was put in public auction on 16.04.2008, which was 3rd bid auction. The appellant participated in said public auction and offered highest bid amount i.e. Rs. 2,57,000/- for purchase of the suit property. The appellant being highest bidder, her bid was accepted and the appellant was directed to deposit 25% of the auction price in the court forthwith with bondage fee as per Order 21, Rule 84 with direction to the appellant to deposit the balance amount in the court within 15 days as provided under Order 21, Rule 85 of C.P.C. The appellant in accordance with the order dated 16.04.2008, made an -: 3 :- application for depositing 25% of auction price and the said application was allowed by the executing court, by directing the Nazir to accept Rs.25% of the auction price. 7. However, the executing court thereafter passed another order dated 16.04.2008 and cancelled the auction bid and directions were given to attach the suit property to be put in fresh public auction again under Order 21, Rule 66 of C.P.C. These directions were given on the ground that the appellant is the wife of an Advocate and that the said Advocate has not moved any application for permission to take part in the auction bid. The executing court observed that the appellant participated in auction bid without there being any permission to take part in the said auction. 8. Having heard the learned counsel for the respective parties and having gone through the impugned order, I find merit in the above A.O. The learned executing court refused to accept the appellant’s bid, as a highest bidder only on the ground that she is a wife of an Advocate and that no permission is taken by the said Advocate for participation of any member of his family in the public auction and therefore the appellant is barred to purchase the property attached by the court. The learned counsel for the appellant submitted that the appellant’s husband -: 4 :- has not represented either of the parties to the suit. This statement is not disputed by the learned counsel for the respondent no.1. The impugned order also does not disclose that the appellant’s husband was representing either of the party to the suit. The learned counsel for the respondent no. 1 could not point out any of the provisions under which Advocate’s wife is barred from participating in any public auction. The executing court has, therefore, committed an error by cancelling the auction bid and putting the suit property in fresh public auction afresh. 9. In the above facts and circumstances, I dispose of this Appeal from Order by passing the following order : ORDER ORDER ORDER i. The impugned order dated 16.04.2008 passed by I/c. Joint Civil Judge, S.D. Kalyan below Application Exh. 49 in S.D. No.3 of 2006 is quashed and set aside. ii. The Appellant is given two weeks time to deposit 25% of auction price in the court. -: 5 :- iii. The executing court shall proceed further with the special Darkhast No. 3 of 2006. 10. The Appeal from Order is disposed of in the above terms. 11. In view of the disposal of the A.O., the civil application does not survive and the same is disposed of as such. (R.V.MORE,J.) .....