ESA No.19 of 2009 1 In the Punjab and Haryana High Court at Chandigarh. Decided on May 18,2009 Hardayal Singh -- Appellant vs Jagsir Singh and others -- Respondent.s CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. H.N.Mehtani ,Advocate,for the appellant Rakesh Kumar Jain,J: Hardayal Singh,Auction Purchaser is in second appeal. Brief facts of the case are that Gulzar Singh (plaintiff/decree holder) filed a Civil Suit No.477 dated 27.7.1994 against Amarjit Singh, pre-decessor-in-interest of respondent No.1. Jagsir Singh for recovery of Rs. 11,660/- with costs and future interest @ 6% per annum which was decreed on 7.10.1995 for a sum of Rs.15,516.75/-. Gulzar Singh (decree holder) filed an execution application on 16.11.1995 claiming the amount of Rs.15,516.75/-. During the execution proceedings, land belonging to Amarjit Singh (Judgment debtor) measuring 32 bighas 1 biswas situated in village Hathoa was attached and put to auction on 22.11.1996 for a sum of ESA No.19 of 2009 2 Rs.17,000/- which was purchased by appellant Hardayal Singh (Auction Purchaser). After the said auction, Amarjit Singh (judgment debtor) filed objections, out of which the present appeal has arisen, on the allegations that no notice under order 21 Rule 66 Civil Procedure Code (for short,CPC) was served upon him. The report made by the Process Server was challenged as incorrect. It was alleged that there was no munadi effected in the village. The proclamation of sale issued by the Court was for 15.11.1996 at 10.a.m. But no auction took place on that date and if any auction had taken place after 15.11.1996, then it was illegal. Gulzar Singh (decree holder) filed reply to the objections alleging that notice under Section 21 Rule 66 of CPC was duly served upon the judgment debtor and the auction proceedings have been conducted by the Court in compliance with the mandatory provisions of law. Initially, objections were dismissed by the executing Court summarily vide its order dated 4.8.1997. The said order was challenged by Amarjit Singh (judgment debtor) by way of appeal which was allowed by the Addl.District Judge,Sangrur vide his judgment dated 29.10.1999 and the matter was remanded back to the executing Court with a direction to decide the objection afresh after affording proper opportunity to the parties to lead their respective evidence and it was also directed that notices of the objection petition should be served upon the Auction Purchaser also ESA No.19 of 2009 3 so that they may also join the hearing of the objection petition, if so desired. Accordingly, notice of the proceedings of objection petition was given by the executing Court to the appellant (Auction Purchaser),who appeared and filed his reply stating that the auction proceedings conducted by the Court are in accordance with law. In the meantime, respondent No.3 (Gurpreet Singh), who is the son of Hardayal Singh and Balbir Kaur filed an objection petition on 3.6.2000 alleging that out of total land 32 bighas 1 Biswas, land measuring 10 bighas 18 Biswas had already been sold by Amarjit Singh (judgment debtor) to them vide registered sale deed dated 17.11.1988. Objection was also raised that before putting the property of the judgment debtor to auction, the executing Court should have applied its mind to find out as to how much property would be sufficient to realise the amount of Rs. 15,516.75/- which was to be paid by the judgment debtor to the decree holder and how the property in dispute measuring 32 bighas 1 biswas has been sold for Rs.17,000/-, whereas the prevalent market rate in the village was about Rs.60,000/- Rs.70,000/- per bighas. These objections were also contested by the decree holder and Auction Purchaser, who filed their reply to the objection petition namely, to the objections filed by the judgment debtor (respondent No.1) and the objections filed by respondent Nos. 3 and 4 ESA No.19 of 2009 4 which were taken up together by the executing Court and on the basis of pleadings of the parties, the relevant issues were framed. Both the parties led their respective evidence. The executing Court allowed the objections filed by respondent Nos. 3 and 4 holding that the judgment debtor had sold land measuring 10 bighas 18 biswas to them vide sale deed dated 17.11.1988 (Ex.OW4/B), therefore, the same could not have been put to auction. Thus, the auction in respect of the said land measuring 10 bighas 18 biswas was set aside with the observation that the Auction Purchaser/ appellant shall be entitled to recover back the proportionate amount of the sale consideration deposited by him in respect of 10 bighas 18 biswas of land. However, it was found by the learned executing Court that there was no illegality or irregularity in the auction with regard to the remaining land belonging to the judgment debtor/appellant and as such, there was no ground for setting aside the auction. This order of the executing Court dated 28.11.2003 was challenged by the judgment debtor by way of appeal before the first Appellate Court. The first Appellate Court after taking into consideration the rival contentions, came to the conclusion that not only the auction had taken place in contravention of the mandatory provisions of Order 21 Rule 66 CPC but also huge immovable property belonging to the judgment debtor was put to auction by the ESA No.19 of 2009 5 executing Court without taking care to find out as to how much property should be auctioned for the recovery of the amount of Rs. 17,000/-, although land measuring 10 bighas 18 biswas was sold for Rs.65,000/- in the year 1988. It was also opined that the auction which had taken place in the year 1996 of the entire land measuring 32 bighas 1 biswa was just for a sum of Rs.17,000/- whereas 10 bighas 18 biswas sold 8 years earlier for Rs.65,000/-, is smacked with irregularity and fraud in the publication and conduct of sale. Thus, the appeal was allowed and the auction sale conducted on 22.11.1996 was set aside. It was further ordered that the decree holder and the judgment debtor should appear before the executing Court where the judgment debtor can file his estimation of the property in accordance with due procedure of Order 21 Rule 66 of CPC and thereafter the executing Court should settle the sale proclamation and put the property to auction again. Aggrieved against the said order of Addl.District Judge, Sangrur dated 14.3.2009, Auction Purchaser has come up in second appeal before this Court. Mr.H.N.Mehtani, learned counsel appearing for the appellant has tried to convince this Court on the point of service of notice as required under Order 21 Rule 66 of CPC but he could not prove from the record that the judgment debtor had refused to ESA No.19 of 2009 6 accept the notice because the report of the Process Server is not attested by any witness. Nothing is available on the record as to who had identified the house of the judgment debtor where the Process Server had affixed the notice. All that has been argued before this Court is with regard to the observation of the executing Court that the judgment debtor had admitted that notice of attachment was sent to him but it was found by the Appellate Court that the said admission is of no consequence, particularly in view of the fact that the record does not reveal service of any such notice upon the judgment debtor. It was also found by the Appellate Court that as per the sale warrant and report made by the revenue official regarding auction of the property in question, the publication issued by the Court for putting up the proposed auction was mentioned as 15.11.1996, but no auction took place on 15.11.1996. Wrong date was mentioned in the proclamation issued by the Court. It was found by the Court that no doubt, sale warrant date was corrected as 22.11.1996 but there was no initial on the said correction/over writing in the copy of the warrant, therefore, it was observed that an inference has to be drawn that proclamation regarding auction was made with regard to auction to be conducted on 15.11.1996 whereas no such auction had taken place on that date. Be that as it may, auction had taken place on 22.11.1996. This fact leads to the ESA No.19 of 2009 7 conclusion that there was material irregularity or fraud in the conduct of sale. It was also found by the Appellate Court that only three persons of the village Guara i.e. village of the decree holder participated in the auction proceedings,whereas the land in dispute is situated in village Hathoa. It was also found that no one from village Hathoa had participated in the auction proceedings because of the reasons that there was no publication of the said auction in the manner provided under the law, as a result of which, prospective bidders were not attracted. It was also found on the report made by the Field Kanungo regarding auction date mentioned under the signatures of Patwari is 22.11.1996. Date underneath the signatures of Field Kanungo is not legible as the said warrant is partially torn. It was also found by the Appellate Court that even from the photostat copy of the sale warrant shown by the Auction Purchaser to contend that date 22.11.1996 was mentioned underneath the signatures of Field Kanungo but the said date was not clearly legible and there appears to be some cutting/ over writing on the said date. Thus, keeping in view the irregularity in the conduct of sale and illegality in respect of notice, learned Court below found that the auction of sale conducted on 22.11.1996 shall be prejudicial to the interest of judgment debtor particularly when the huge land measuring 32 bighas 1 biswas has been sold for Rs.17,000/- only though land measuring ESA No.19 of 2009 8 10 bighas 18 biswas out of the aforesaid land was sold 8 years earlier for Rs.65,000/-. I have examined the facts of this case from all angles and have come to the conclusion that there is no error in the order of learned Court below and as such, the present appeal is found to be devoid of any merit and is dismissed in limine without any order as to costs. May 18,2009 (Rakesh Kumar Jain) RR Judge Refer to Reporter: Yes.