ESA Nos.6 & 5 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. 1. E.S.A.No.6 of 2010 Mangi Lal Rustagi son of Bal Mukund ...Appellant Versus Govind Singh and others ...Respondents 2. E.S.A.No.5 of 2010 Mangi Lal Rustagi son of Bal Mukund ...Appellant Versus Smt.Geeta Devi and others ...Respondents Date of Decision:-4.8.2010 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Kul Bhushan Sharma, Advocate for the appellant. Govind-respondent No.4 in person. M ehinder S ingh S ullar , J. (Oral) As identical questions of law and facts are involved in the aforementioned appeals, arising out of the same decree, therefore, I propose to dispose of the same by virtue of this common judgment, in order to avoid the repetition. However, the facts, which need a necessary mention, have been extracted from ESA No.6 of 2010. 2. The compendium of the facts, culminating in the commencement, relevant for disposal of present appeals and emanating from the records, are that the suit for recovery of Rs.24,300/- alongwith interest filed by the plaintiff-Central Bank of India (decree holder) was decreed against Govind Singh (loanee) and his father Sher Singh (guarantor) (since deceased), being represented by his legal representatives-defendant-JDs, vide judgment and decree dated 23.7.1986, which has already attained the finality. Sher Singh, father of Govind Singh had ESA Nos.6 & 5 of 2010 2 mortgaged his agricultural land measuring 40 kanals 14 marlas as security of the loan in favour of the bank. As the defendant-JDs did not pay, therefore, the plaintiff bank (decree holder) filed the execution petition for recovery of the decretal amount by way of attachment and sale of mortgaged land. 3. As is clear from the record that during the execution proceedings, besides the mortgaged land, the land measuring 16 kanals was also attached. Thus, the total land measuring 56 kanals 14 marlas (7 acres and 14 marlas) was auctioned only for Rs.1,50,000/- on 4.5.2002 in favour of appellant-Mangi Lal Rustagi, Advocate, who was representing the plaintiff bank in the suit as well as in the execution proceedings. On 6.5.2002, Govind Singh moved an application before the executing Court for postponing the process of confirmation of sale as well as issuance of sale certificate in favour of Mangi Lal Rustagi, Advocate, mentioning therein that he wants to deposit a sum of Rs.35,000/- alongwith interest with the plaintiff bank (decree holder), as per the compromise already arrived at between them. On 9.5.2002, Geeta Devi wife of Govind Singh filed another application for setting aside the sale on the ground that Sher Singh suffered a decree in her favour regarding his entire land measuring 56 kanals 14 marlas including the mortgaged land with the decree holder bank and after his death, she has acquired all the rights in his property. Her plea was negatived by the executing Court. 4. Sequelly, on 28.11.2003, Govind Singh moved another application for setting aside the auction and sale proceedings on the ground of collusion and fraud etc. The same was dismissed by the executing Court, by virtue of order dated 29.11.2003. 5. Aggrieved by the order of the executing Court, Govind Singh-JD filed the appeal. Likewise, his wife Geeta Devi also filed the appeal. The Ist appellate Court accepted the appeals and set aside the order dated 29.11.2003 of the executing Court on account of compromise between the decree holder and ESA Nos.6 & 5 of 2010 3 judgment-debtors. It also set aside the auction-sale and its confirmation and directed the plaintiff bank (decree holder) to refund the amount of Rs.68,000/- to appellant-auction purchaser Mangi Lal Rustagi, Advocate alongwith upto date interest at the rate of 9% per annum, vide impugned judgment dated 21.2.2009. 6. Appellant Mangi Lal Rustagi-auction purchaser, did not feel satisfied with the impugned judgment of Ist appellate Court and filed the present appeals. 7. Having heard the learned counsel for the appellant-auction purchaser and respondent Govind Singh, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to me, there is no merit in these appeals. 8. As is evident from the record that the plaintiff bank (decree holder) filed the execution petition against the defendant-JDs for recovery of the decretal amount by way of auction/sale of the mortgaged property. The appellant is neither plaintiff-decree holder nor the defendant-JD, but he is the auction purchaser. The first appellate Court has acknowledged that since appellant Mangi Ram Rustagi, Advocate was representing the plaintiff bank in the suit as well as in the execution proceedings, so, the possibility of his collusion with the bank in depriving the defendant-JDs from their valuable property, cannot possibly be ruled out. The Ist appellate Court has also noticed that the entire land of Sher Singh, father of Govind Singh measuring 56 kanals 14 marlas was attached only for recovery of Rs.24,300/-. The proclamation was signed by the executing Court on 11.4.2002. The auction was conducted on 4.5.2002 and the attached property was auction for a paltry sum of Rs.1,50,000/- only in favour of auction purchaser M.L.Rustagi, Advocate. On 4.5.2002, when the auction was held, M.L.Rustagi participated in the auction proceedings in his individual capacity and not on behalf of decree holder-bank. He pressurized the Tehsildar, who conducted the auction, to accept 25% of the auction amount under protest despite the fact that the Tehsildar, Rewari, in his report, has clearly observed that the auction amount is very less and ESA Nos.6 & 5 of 2010 4 the market price of the land was verified to be Rs.28 lacs approximately. In this context, Tehsildar reported the matter to the executing Court that the sale be not confirmed, but the executing Court still illegally confirmed it. The executing Court has just ignored these vital facts that the land of the judgment-debtors worth Rs.28 lacs was put to illegal auction without following the prescribed procedure only for recovery of Rs.24,300/- and that too in favour of appellant Mangi Lal Rustagi Advocate, who is none else but counsel for plaintiff-decree-holder. Therefore, collusion and manipulation are apparent on the face of the record. That means, the Ist appellate Court has recorded very valid reasons for setting aside the confirmation of sale. As no illegality has been pointed out by the learned counsel for the appellant-auction purchaser in this regard in the impugned order, therefore, the same is hereby maintained in the obtaining circumstances of the case. 9. There is another aspect of the matter, which can be viewed from a different angle. It is not a matter of dispute that the plaintiff bank has already compromised the matter and received the entire decretal amount alongwith interest. In this respect, the Ist appellate Court has observed as under:- “Besides letters Ex.PX and Ex.PY decree holder bank had been admitting the factum of the compromise with the JD. As stated earlier, the appellant Smt.Geeta Devi filed an application for setting aside the sale on 1.6.2002 and in para no.8 of her aforesaid application she clearly mentioned that a sum of Rs.60,000/- was agreed to be paid as lump sum amount in full and final settlement of the decretal amount upto 31.12.2001 before the Lok Adalat held on 20.10.2001. Decree holder bank in its reply dated 27.3.2002 clearly admitted the said fact as correct. Similar fact regarding the entering of the compromise with appellant Govind Singh was also admitted by the decree holder bank in its reply dated 20.5.2002 filed in response to the application of appellant Govind Singh dated 9.5.2002 for setting aside the sale. Now when a settlement had been arrived between the ESA Nos.6 & 5 of 2010 5 decree holder and judgment debtor that a lump sum amount of Rs.60,000/- would be paid by the decree holder against the amount due and the decree holder bank accepted a sum of Rs.25,000/- upto 28.2.2002 and later on balance amount of Rs.35,000/- plus interest of Rs.2000/- i.e. Rs.37,000/- in total on 6.5.2002 in recognition of that settlement, then the learned executing court was not justified in confirming the sale in favour of auction purchaser Mr.M.L.Rustagi Advocate vide its impugned order inasmuch as the decree in question has become fully satisfied.” 10. Meaning thereby, the matter stands compromised between the plaintiff bank (decree holder) and the defendant-JDs. Since the decretal amount has already been deposited by the JDs and accepted by the decree holder bank, so, the decree stood fully satisfied. 11. Above being the position, it cannot possibly be saith that the appellant is left with any interest whatsoever in the land in dispute and he has no claim in this context. Therefore, the contrary arguments of learned counsel for appellant-auction purchaser 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances. 12. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant and respondent No.4. 13. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeals are hereby dismissed. (Mehinder Singh Sullar) 4.8.2010 Judge AS