IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6087of 2004 Date of Decision : September 04, 2009 Surjit Singh .....Petitioner Versus Jeeto and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. C.L. Verma, Advocate for the petitioner. Mr. Balram Singh, Advocate for respondents No.2 to 6. T.P.S. MANN, J. The present revision has been directed against the order dated 16.10.2004 passed by Additional District Judge, Kapurthala whereby he accepted the appeal filed by Mangta (since deceased), predecessor-in-interest of respondents No. 1 to 6 against the order dated 13.10.2003 passed by Civil Judge (Junior Division), Phagwara in the execution proceedings. A suit for the recovery of Rs.40,834/-, alongwith interest and costs, was decreed in favour of Bakshi Ram son of Mela Ram against Mangta son of Hira vide judgment and decree dated 19.9.1994. Vide order dated 4.11.1999, the executing Court dismissed the objection Civil Revision No. 6087 of 2004 -2- petition filed by the Judgment Debtor and orders were passed for auction of property belonging to him which stood attached. The auction was effected on 14.2.2000. On 17.2.2000, the Judgment Debtor appeared in the executing Court and made the payment of Rs.65,960/-, i.e. the decretal amount plus upto date interest and costs, which amount was duly accepted by the Decree Holder. This was followed by the Judgment Debtor filing objections against the auction and sale of his land measuring 39 kanals 11 marlas and praying for release of his attached land forthwith by setting aside the sale proceedings. Reply was filed by the present petitioner, who was the auction purchaser, pleading therein that besides making payment of the sum under the decree to the Decree Holder, the Judgment Debtor was also required to deposit 5% of the amount of auction money for being paid to the auction purchaser in case he was interested to get the property released and as he had not made the said deposit, the objections filed by the Judgment Debtor were not maintainable. Learned executing Court, vide order dated 13.10.2003, held that the objections submitted by the Judgment Debtor under Order XXI Rule 89 C.P.C. were not maintainable as he had not deposited 5% of the purchase money, which was a pre-requisite condition for the maintainability of the objections. Even if the objections were considered to be one under Order XXI Rule 90 C.P.C., there was no material available from which it could be concluded that there was a material irregularity or fraud in publishing or conducting the sale and the Judgment Debtor sustaining a substantial injury on account of the same. As the objection petition was neither maintainable nor covered under Civil Revision No. 6087 of 2004 -3- Order XXI Rule 89 or under Order XXI Rule 90 C.P.C., the objection petition was without any merit and, therefore, dismissed. Aggrieved of the order passed by the executing Court, the Judgment Debtor filed an appeal. Learned Additional District Judge, Kapurthala was, however, of the view that in order to dispose of the objections submitted by the Judgment Debtor, it was essential that proper issues should have been framed by the executing Court and after affording opportunity to the parties to lead evidence, the same were to be disposed of on merits. As the learned executing Court had observed that the Judgment Debtor did not adduce any evidence to show that the land in auction had been sold at a much lesser price than its market value, the said Court lost sight of the fact that it did not afford any opportunity to the Judgment Debtor to lead any evidence in that respect. Accordingly, vide order dated 16.10.2004, the appeal was accepted, order passed by the executing Court was set aside and the case remanded to the executing Court with a direction to frame proper issues and after affording opportunity to the parties to lead evidence, dispose of the objections on merits, as per law. Aggrieved of the aforementioned order passed by Additional District Judge, Kapurthala, the auction purchaser is before this Court in a revision filed under Article 227 of the Constitution of India. During the pendency of the appeal before learned lower appellate Court, the Judgment Debtor died on 18.11.2003. Accordingly, while filing the present revision in this Court, auction purchaser/petitioner impleaded respondents No.1 to 6 as his legal representatives. Upon notice, respondents No.2 to 6, who are the children of Mangta-Judgment Civil Revision No. 6087 of 2004 -4- Debtor, stand served and represented. Respondent No.7, namely, Bakshi Ram-decree holder also stands duly served. However, no one has put in appearance on his behalf. Respondent No.1, namely, Smt. Jeeto, widow of Mangta-Judgment Debtor also died and vide order dated 4.5.2006, respondents No.2 to 6 were brought on record as her legal representatives. It is not in dispute that recovery suit filed by Bakshi Ram- respondent No.6 against Mangta, predecessor-in-interest of respondents No.1 to 6, was decreed, alongwith interest and costs. In execution of the said decree, the property belonging to the Judgment Debtor was attached. The same was put to auction on 14.2.2000 by the Tehsildar, who auctioned it for Rs.6,72,350/-. On 17.2.2000, the Judgment Debtor appeared in the executing Court and made the payment of Rs.65,960/-, i.e. the decretal amount plus upto date interest and costs, which amount was duly accepted by the Decree Holder. Subsequent thereto, the Judgment Debtor filed an objection petition stating therein that he had offered the entire amount of execution to the Tehsildar, Phagwara, who had come to the spot as per the orders of the Court for auctioning and selling his land measuring 39 kanals 11 marlas but the Tehsildar flatly refused to accept the amount and sold/auctioned the entire land belonging to him for an amount of Rs.6,72,350/-, whereas, according to him, the market value of the land was Rs.30,00,000/- and the government value of the land was Rs.10,00,000/-. Even the Decree Holder had received full and final amount of execution, i.e. Rs.65,960/- on 17.2.2000 in the executing Court and made a statement for dismissal of the execution proceedings, being fully satisfied. Therefore, the Civil Revision No. 6087 of 2004 -5- auction/sale be set aside and his land measuring 39 kanals 11 marlas be released forthwith. In case the objections submitted by the Judgment Debtor are considered to be one under Order XXI Rule 89 C.P.C., the same were not maintainable in view of the fact that he had not deposited 5% of the purchase money for being paid to the auction purchaser. He simply deposited the decretal amount plus upto date interest and costs on 17.2.2000. Both the learned Courts below have found as a matter of fact that the Judgment Debtor had made the payment of Rs.65,960/- to the Decree Holder in the executing Court on 17.2.2000 after the auction of his land but he did not deposit an amount, equal to 5% of the auction/purchase money, for being paid to the auction purchaser. The deposit of 5% of the purchase money by the Judgment Debtor for being paid to the auction purchaser so as to compensate him was a pre- condition before entertaining his objections under Section XXI Rule 89 C.P.C. As the deposit of 5% of the auction/purchase money was not made, the objections were not maintainable under Order XXI Rule 89 C.P.C. According to learned counsel for respondents No. 2 to 6, the objection petition filed by the Judgment Debtor was under Order XXI Rule 90 C.PC. There was material irregularity/fraud in conducting the auction proceedings and as a result thereof, the Judgment Debtor sustained substantial injury. Civil Revision No. 6087 of 2004 -6- If the argument of learned counsel for respondents No.2 to 6 is accepted, then in that situation, the order passed by the lower appellate Court in accepting the appeal of the Judgment Debtor was without jurisdiction. Order passed under Order XXI Rule 90 C.P.C. is not appealable. Order XLIII Rule 1 C.P.C. lists the various orders which can be challenged by filing an appeal under Section 104 of the Code. Order passed under Order Order XXI Rule 90 C.P.C. does not fall in any of those cases. As the impugned order is without jurisdiction, it cannot be sustained. The main ground taken by the Judgment Debtor while filing the objection petition, so as to get the sale/auction set aside and for release of his attached land, was that he had deposited full and final amount of execution, i.e. Rs.65,960/- on 17.2.2000 in the executing Court and the Decree Holder receiving the same and making a statement for dismissal of executing proceedings being fully satisfied. The limited interest of the Decree Holder was to recover the decretal amount alongwith interest upto date and costs and once his interest had been secured, he had no other option but to make a statement that the execution stood satisfied. However, by that time, a right had been created in favour of the auction purchaser, who had deposited the bid money at the fall of the hammer. Before asking for release of his land and setting aside the sale/auction, the Judgment Debtor was required to compensate him also by depositing 5% of the purchase money. The same having not been done, the objections submitted by the Judgment Debtor were not maintainable. Civil Revision No. 6087 of 2004 -7- Once it is held that the objection petition submitted by the Judgment Debtor was not maintainable as he had not deposited 5% of the auction amount for being paid to the auction purchaser, there was no question of framing of issues and affording the parties opportunity to lead their evidence for the purpose of deciding the objection petition. Under these circumstances, learned lower appellate Court was not justified in accepting the appeal of the Judgment Debtor against the order of the executing Court and ordering the remand of the case to the executing Court with a direction to frame proper issues and then to decide the objection petition on the basis of the evidence led by the parties. Resultantly, the revision is accepted, order dated 16.10.2004 passed by Additional District Judge, Kapurthala is set aside and that of learned Civil Judge (Junior Division), Phagwara passed on 13.10.2003 is restored. ( T.P.S. MANN ) September 04, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO