IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.140 OF 1994 DATE OF DECISION: JANUARY 30,2008 Lajwanti through her L.Rs and others .....Petitioners VERSUS Malkiat Kaur @ Amarjit Kaur and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Alka Sarin, Advocate, for the petitioners. Mr. S. C. Pathela, Advocate, for the respondents. **** RANJIT SINGH, J. Lajwanti and others filed this revision petition, impugning the order passed by the Additional District Judge, Bhatinda, directing attachment and sale of house belonging to Chanan Singh. He (Chanan Singh) was the appellant in this case before the Additional District Judge and on his death, Lajwanti and other L.Rs were substituted and had filed this revision before this Court. Lajwanti has also died and her L.Rs are now on record, prosecuting the present petition. The history of the case is long drawn one and can briefly be summarised. Malkiat Kaur, respondent No.1, married Bhupinder Singh son of Late Chanan Singh. She obtained a money decree dated 12.6.1989 for a sum CIVIL REVISION NO.140 OF 1994 :{ 2 }: of Rs.43,664-50P in a civil suit filed by her in the year 1987. The house belonging to Chanan Singh was ordered to be attached by the executing Court at Gidderbaha. For sale of the attached property and recovery of decretal amount, the executing Court at Gidderbaha transferred the decree to the Court of Senior Sub Judge, Bhatinda, where the attached property was located. The house was accordingly put to sale, which was conducted on 14.3.1990. The highest bid given was Rs.71,000/-. The person giving bid could not pay 1/4th amount at the spot and, thus, the sale remained incomplete. Fresh sale warrants were issued but no one came forward to give the bid. Decree-holder, Malkiat Kaur, then moved an application for permission to bid at the spot and was allowed to participate in the auction. The sale was, thus, conducted on 16.8.1990 and she gave the highest bid of Rs.51,500/-. After deducting the decretal amount, the decree holder deposited the remaining sale price of Rs.7836/- in the Court. The Court waited for the objections for a stipulated period of 30 days. On 5.10.1990, one Advocate K.S.Sodhi appeared on behalf of the judgment debtor and sought time for filing objections. The case was adjourned on few occasions for filing objections. On 21.12.1990, Late Chanan Singh filed an application under Order 21 Rule 58 CPC and under Section 47/60 read with Section 151 CPC. Balwant Kaur etc. also filed objections under Order 21 Rule 58 CPC. The reply to the objections was filed by decree holder and the case was adjourned for hearing on few occasions. On 19.10.1991, late CIVIL REVISION NO.140 OF 1994 :{ 3 }: Chanan Singh allegedly made a statement, asking for one month's time for arranging funds for paying the decretal amount. He further stated if he failed to pay the amount, his objections against the sale may be treated as dismissed and sale confirmed. The case was adjourned on account of this statement made by Chanan Singh. He, however, could not arrange the money and sought time for making the payment subsequently as well. For this purpose, the case was adjourned to 18.12.1991, 15.1.1992 and 24.1.1992. On 24.1.1992, Suraj Singh Dhillon, Advocate, appeared on behalf of the judgment debtor and sought further time for making payment of decretal amount. The case was adjourned to 25.2.1992 and then to 28.3.1992, 23.4.1992 and 8.5.1992. The payment still could not be arranged and made. On 8.5.1992, a request was again made before the trial Court for grant of one month's time for making arrangement of the decretal amount. Taking compassionate view of the matter, the proceedings were adjourned to 6.6.1992 to enable the judgment debtor to satisfy the decree, failing which the further proceedings were to continue. Chanan Singh appeared on the said date but still could not make the payment, when the sale was ordered to be confirmed. It is seen that the objections, which were raised by Late Chanan Singh, Judgment Debtor, were not considered by the trial Court and the sale order was confirmed mainly on account of the inability of the judgment debtor to make arrangement of the amount for depositing the same. Basically, it is the statement made by the CIVIL REVISION NO.140 OF 1994 :{ 4 }: judgment debtor, which went against him and the Court did not adjudicate on the legal objections that he raised in this regard. This can clearly be noticed from the order passed by the Senior Sub Judge, Bhatinda, on 6.6.1992, the relevant portion of which is as under:- “J.D. No.2 is present in person today. He has neither deposited the amount nor has made any arrangement for the same. No further indulgence is called for. The sale was effected on 16.8.1990 and the statutory period has long expired. With the failure of J.D. No.2 to pay the decretal amount, the objections stands dismissed as per his own statement. The court sale is, therefore, liable to be confirmed.” Late Chanan Singh filed appeal. It is pleaded that executing Court did not give notice under Order 21 Rule 66 before ordering the sale. It is further pleaded that sold property was the only residential house of the judgment debtor and other members of his family were living there. Allegation of under valuing the property sold, which was stated to be worth Rs.5 lacs, is also made. The appeal was contested by the decree holder. Chanan Singh, Judgment Debtor, however, died and his L.Rs were brought on record, as already noticed. The L.Rs of Judgment Debtor Chanan Singh also made an application before the appellate Court, showing their willingness to pay the entire decretal amount together with costs and interest. Notice of this application was given to the decree holder, CIVIL REVISION NO.140 OF 1994 :{ 5 }: who filed reply, expressing her unwillingness to accept the decretal amount at that stage. It was pleaded that such an application was not maintainable under law. The said application was ordered to be heard with the main appeal. While deciding the appeal, the appellate Court held that L.Rs of the deceased judgment debtor can not compel or press the decree holder to accept the payment. The L.Rs were also confronted with another technical hurdle by the appellate court when it observed that if they all wanted to press certain additional grounds as originally taken by the deceased judgment debtor, they could have filed an application under the relevant provisions of law for adding the grounds of appeal. It was accordingly held that the way chosen by the L.Rs of the judgment debtors (petitioners) was not permissible under any provision of law and accordingly dismissed this application being not maintainable. Having done so, the appellate Court did notice the objections raised by the appellants/L.Rs. The three fold objections raised in this regard were that no notice under Order 21 Rule 66 CPC was served. It is also urged that the house which was attached and sold is the only residential house of the J.D. where other members of the family are staying and further that the market value had not been correctly assessed by the Court. This, according to the appellants, went to the root of the matter, rendering the entire sale to be illegal and as such, liable to be set-aside. Ofcourse, these grounds, as raised before the appellate Court, were refuted by the decree holder. CIVIL REVISION NO.140 OF 1994 :{ 6 }: It is seen that the appellate Court has not dealt with the legal objections raised before it and held against the petitioners by taking into account the statement made by Late Chanan Singh for depositing the decretal amount, which he failed to honour. In this regard, it is held by the appellate Court as under:- “Now, I doubt, if he can be permitted to raise the same objections against the sale which he took before the Executing Court but got dismissed of his own volition. The argument that there cannot be an estoppel against statute will not be attracted to the case in hand. Firstly, for the reason that the objection petition before the executing court was filed by the J.D.objector after the expiry of the given period of limitation. However, the learned Executing Court acceding the prayer of the J.D. permitted him to deposit the amount before confirming the sale, but he could not avail this opportunity and rather by his consent withdrew the objections against the sale and permitted the executing court to confirm the sale. Now, it would be too late for him to say that the sale is liable to be set aside on those very grounds which he did not press before the executing Court nor principle of estoppel against statute will be attracted. In the circumstances therefore, I feel that the J.D. having already withdrawn the above said objections detailed in his objection petition filed before the Executing Court is estopped from CIVIL REVISION NO.140 OF 1994 :{ 7 }: reiterating the same in appeal. More so, when not a word he has mentioned in the grounds of appeal for retracting from his previous statement before the executing Court getting his objection petition dismissed voluntarily.” Though the appellate Court has noticed the legal submissions made on behalf of the J.D. and the law in this regard but apparently has held against the petitioners only on account of the statement that Late Chanan Singh happened to make before the executing Court. This can be so made out from the following finding recorded by the appellate Court:- ““In execution of decree dated 12-6-89 passed by Sub Judge Ist Class, Giddarbaha received on transfer in this Court, the attached house of the JD was sold on 16.8.1990. The highest bid of the decree-holder who was permitted under Order 21, Rule 72 CPC for Rs.51,500/- was accepted. She has since deposited the entire decretal amount. J.D. No.2 filed certain objections against this sale on 6-12-1990. He, however, made a statement on 19-10-1991 that he be given a period of one month in arranging funds for paying the decretal amount and if he failed to do so again Court sale be treated as dismissed and sale be confirmed and sale certificate be issued in favour of the decree holder-purchaser. A number of opportunities have thereafter been afforded to the J.D. to make payment of the decretal amount to the decree CIVIL REVISION NO.140 OF 1994 :{ 8 }: holder but he has been seeking time. Shri S.S.Dhillon, Advocate, learned counsel for the J.D. seeks a month's time in making arrangement for payment of the decretal amount failing which sale be confirmed and sale certificate be issued in favour of the decree-holder- purchaser. Taking compassionate way of the matter, I adjourn the proceedings on 6-6-1992 to enable the J.D. to satisfy the decree failing which further proceedings shall be taken.” It would, thus, be seen that the legal and valid objections raised by the petitioners did not receive adjudication by the courts below and both the courts have held against the petitioners only on account of the statement that Late Chanan Singh made. Poverty seems to be the apparent reason, for which the petitioner-J.D. could not deposit this amount and, thus, his L.Rs are facing the problem of loosing their only residential house. Specific objection was taken before the courts in regard to non-compliance of the provisions of Order 21 Rule 66 CPC and Order 21 Rules 85 and 86 CPC. Before the appellate Court, even the objection was raised under Order 21 Rule 72 CPC to urge that before granting decree holder a leave to bid for the property, J.D. was not put to notice. The objections in regard to non-compliance of the provisions of Order 21 Rules 85 and 86 and that Order 21 Rule 72 CPC were ignored by the appellate Court on the ground that the same were not raised in the grounds of appeal but were taken by the L.Rs through a miscellaneous CIVIL REVISION NO.140 OF 1994 :{ 9 }: application, which can not be treated as a ground of appeal against the impugned order. It was pleaded before the appellate Court, with some justification, that the petitioners could not be estopped from raising the legal objections as the statement, even if taken as true, would amount to an estoppel against the statute, which can not legally bind the maker thereof. It would be open to debate if the objection flowing from purely legal ground can be so declined from consideration on the technical ground that this was not raised before the executing Court etc. Basically, the courts below have held against the petitioners only on account of his conduct in not deposing the decretal amount despite availing number of opportunities. No efforts appear to have been made to know the reasons for which the petitioners could not do so. Should a poverty be so over-whelmingly weigh against a person to deny him even a consideration of legal objections that he may have against any action? In my view, the courts have been harsh to the petitioners, whereby the sale has been confirmed without considering the legal and valid objections raised on behalf of the petitioners. The appellate Court is not fully justified in saying that Chanan Singh withdrew the objections. He only took time to make payment and stated that sale may be confirmed if he is not able to make the payment. He never said that he was withdrawing the objections. The objections, as such, were required to be decided. The Courts are not justified in linking the decision on the objections to the payment of decretal amount. Rather, the objections were not CIVIL REVISION NO.140 OF 1994 :{ 10 }: required to be gone into if the amount had been paid. These needed to be decided once the decretal amount was not paid. It is to be noted that the decree holder is none other than an erstwhile family member, being a daughter-in-law of Chanan Singh. The petitioners have lot to say against her, which have been placed on record through a miscellaneous application. A fact, which has been highlighted by counsel for the petitioners and under-played by counsel representing respondent, Malkiat Kaur, is that she has now been convicted for an offence of murder and sentenced to undergo life imprisonment. She is convicted of killing her brother-in- law (sister's husband). Though has not come on record, but referred to by counsel for the petitioners, that Malkiat Kaur's marriage with Bhupinder Singh son of Chanan Singh was a second marriage that too without obtaining divorce from the previous marriage, in which she had matrimonial and other litigation. The suit for recovery, which has been decreed, leading to attachment and sale of a house, has also come on account of a petition filed under Section 125 Cr.P.C., seeking maintenance from petitioner No.2, Bhupinder Singh. The counsel for the petitioners would highlight that Bhupinder Singh had undergone various periods of civil imprisonments on account of recovery proceedings initiated by respondent, Malkiat Kaur. Of course, these aspects need not weigh much and the case is to be decided as per its merits. Counsel for the petitioners would refer to the provisions of Section 60(ccc) to say that only residential house could not have CIVIL REVISION NO.140 OF 1994 :{ 11 }: been attached and put to sale in view of this provision. The other valid objection, as raised before the executing Court as well as before the appellate Court, would also flow basically from the provisions of the Code of Civil Procedure. In my view, the violation of these provisions, if there, can not be easily ignored. Order 21 Rule 66 CPC talks of a proclamation of sale by public auction. This is a duty of the Court to cause a proclamation of the intended sale. It could not be seriously disputed before me that nothing is indicated from the record if the proclamation of sale by public auction is available on the record of the case. It is not appropriate for me to determine the effect of the violation of this provision of law as the same has not been gone into by the courts below. The effect of the contents of Section 60(ccc), which carves out an exception in regard to one main residential house and other buildings attached to it from attachment etc., is also required to be seen and gone into. Objections raised by the petitioners before the appellate Court i.e. regarding Order 21 Rule 84 CPC and in regard to deposit by the purchaser and resale on default, though raised in the appeal for the first time, may also require to be gone into, these being questions of law. Some additional objections were also raised on behalf of the petitioners as would flow from the contents of Order 21 Rules 85 and 86 CPC, which had again not been gone into and so too the objection in regard to notice having not been served on the petitioner-J.Ds, as required under Order 21 Rule 72 CPC. It would have been a different matter if the courts below have taken these CIVIL REVISION NO.140 OF 1994 :{ 12 }: objections into consideration and held against the petitioners. The petitioners are entitled to have their legal objections considered and decided. The petitioners did not make any statement withdrawing the objections. In fact, there is no statement made before the appellate Court. The court has not acted in a legal and fair manner in not considering the objections, when the objections were pressed and made on such additional grounds. To balance the equity, the counsel representing the respondents was given an option to ascertain if the respondents would be prepared to accept the decretal amount or the sale consideration with interest especially in the background that the house statedly is the only residential house occupied by the petitioners. This was not acceptable to the respondents. Having considered the rival contentions and upon perusal of the impugned order, I am of the considered opinion that the courts below were bound to decide the objections raised even if the petitioners had failed to pay the decretal amount and are not justified in dismissing the objections only on the basis of a statement rendered through the J.Ds. The objections raised by the petitioner-J.Ds, which were basically legal objections, were required to be gone into by the courts. No doubt, the courts do take into consideration the conduct of the parties, which the counsel for the respondents has highlighted before me but that alone, in the facts of the present case, would not have been enough for the Court to decline consideration of the legal objections raised before it. CIVIL REVISION NO.140 OF 1994 :{ 13 }: I am inclined to accept the revision petition and would set-aside the impugned order. I would remand the case back to the appellate Court to re-consider the case by taking into consideration the objection raised by the J.Ds in regard to this sale. It is so ordered. To show their bonafide, the petitioners are directed to deposit the amount for which the house was sold alongwith interest @ 8% per annum from the date it is due to the date of deposit before the appellate Court. The sale amount has been deposited by the respondents since long. The petitioner would, thus, deposit the amount as ordered within a period of one month from the date of the receipt of copy of this order. It would be fair to make this order conditional. In case the petitioners fail to comply with the same, the revision petition filed by them would be deemed to have been dismissed. The present revision petition is disposed of in the above noted terms. January 30 ,2008 ( RANJIT SINGH ) khurmi JUDGE