COCP No. 1083 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH COCP No. 1083 of 2010 Date of decision:- 7.9.2010 Neena Asar ......petitioner vs. Maya Rani Sharma and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. J.S. Chandail, Advocate for the petitioner Mr. Vivek Suri, Advocate for respondent No.1 Mr. Kasturi Lal, Advocate for respondent Nos. 2 and 3. Mr. Karminder Singh, Advocate for respondent No. 4. Mr. Raj Kumar Gupta, Advocate for respondent No.5 HEMANT GUPTA, J (ORAL) Plaintiff-respondent No. 1 filed a suit for rendition of the account of a partnership-firm M/s Durable Auto Spares 37, Industrial Area Phase-I Panchkula. The petitioner is the legal heir of Tarsem Lal one of the partners of the said firm. A preliminary decree was passed on 8.11.1995 whereby defendant No. 1- Tarsem Lal Bhatti and plaintiff- Maya Rani Sharma were found to be the partners of the said Firm. In proceedings for preparation of final decree, the petitioner was proceeded ex-parte on 15.1.2004. The petitioner filed an application for COCP No. 1083 of 2010 -2- setting aside of the said ex-parte proceedings on 8.9.2005. Learned trial Court vide order dated 3.12.2005 permitted the petitioner to participate in the proceedings from the stage, the proceedings were pending before the said Court. The said order was challenged by the petitioner before this Court in CR No. 563 of 2006. The revision petition was allowed on 27.11.2008 and the order passed by learned trial Court on 3.12.2005 was set aside and the matter was remitted to the learned trial Court for adjudicating the application and the objections of the petitioner in accordance with law. After the order was passed by this Court, the petitioner filed an application dated 13.1.2009, wherein the petitioner prayed that auction proceedings dated 28.4.2005 and 19.2.2005 i.e. after the petitioner was proceeded ex-parte be also set aside. The said application was disposed of by learned trial Court on 8.9.2009 and the final decree was ordered to be drawn in terms of the preliminary decree dated 8.11.1995. Admittedly, the order passed by the learned trial Court on 8.9.2009 is the subject matter of an appeal pending before the learned first Appellate Court. In the present contempt petition, the learned Presiding Officer who passed the order on 8.9.2009 was impleaded as respondent. In her reply, it has been pointed out that the petitioner has not pressed the application dated 8.9.2005 for setting aside the ex-parte proceedings. From the reply filed by the Presiding Officer, it is apparent that the application filed by the petitioner for setting aside of the ex-parte proceedings dated 8.9.2005 has not been decided as directed by this Court in its order dated 27.11.2008. The conduct of proceedings by the Presiding Officer cannot be appreciated. However, at this stage, the question which is COCP No. 1083 of 2010 -3- required to be examined is that how to give effect to the order passed by this Court on 27.11.2008. Admittedly, the auction of the property of firm was conducted after the petitioner was proceeded ex-parte. Once this Court has set aside the ex-parte proceedings, all proceedings consequent to initiation of ex-parte proceedings are also deemed to have been set aside. Such proposition is not disputed by any of the learned counsel for the parties but it is argued by Mr. Kasturi Lal, learned counsel for auction purchaser that he is bona fide purchaser and therefore, the auction conducted on 28.4.2005 in pursuance of an order passed by the Court should not be interfered with at this stage and when the appeal filed by the petitioner is pending before the learned First Appellate Court. Admittedly, the auction of the property of the firm have been conducted in the absence of the petitioner, i.e. after ex-parte proceedings were initiated against the petitioner. Once the ex-parte proceedings have been set aside, the subsequent proceedings cannot be sustained. Therefore the auction of the property conducted at the back of the petitioner is not sustainable. The argument of learned counsel for auction purchaser that he is a bona fide purchaser, is not tenable. The auction purchaser has purchased property in terms of an order passed by the Court. Such an order is not sustainable for the reasons mentioned above. The auction purchaser cannot take benefit of illegality in the procedure. It is further well settled that the mistake of the Court shall not prejudice any person. In the present case, learned trial Court has not decided the application dated 8.9.2005 even COCP No. 1083 of 2010 -4- though, the said application was directed by this Court to be decided by learned trial Court. Still further, the ex-parte proceedings initiated against the petitioner was found to be illegal by this Court. Therefore, the order of this Court having attained finality has to be given effect to by the learned trial Court and could not be ignored on any ground whatsoever. Since, the auction has been found to be conducted illegally and at the back of the petitioner, such auction will not confer any rightful title in favour of the auction purchaser and therefore, such auction is set aside in exercise of powers of this Court under Article 227 of the Constitution of India for effecting substantial justice between the parties and to give effect to the order passed by this Court. As a consequence thereof, the auction purchaser shall restitute the property in the same condition as it was prior to the auction. The benefit of sale consideration received by this creditors secured or otherwise shall be refunded to the auction purchaser forthwith in any case not later than one month from today. Disposed of in the above terms. (HEMANT GUPTA) JUDGE 7.9.2010 preeti