ESA No. 4 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos. 949-C and 950-C of 2010 and ESA No. 4 of 2010(O&M) Date of Decision: January 27 , 2010 Mohan Lal ...... Appellant Versus Firm Aggarwal & Company and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.A.K.Khunger, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM No. 950-C of 2010 For the reasons recorded, delay of 26 days in refiling the present appeal is condoned. CM stands disposed of. CM No. 949-C of 2010 For the reasons recorded, delay of 12 days in filing the present appeal is condoned. CM stands disposed of. ESA No. 4 of 2010 This is an appeal against the concurrent judgments of the courts ESA No. 4 of 2010(O&M) 2 below dismissing the objections of the JD-appellant for setting aside the auction of the property. The recovery suit instituted against the appellants and others was decreed way back on 20.01.1983. The main argument of learned counsel for the appellant is that the auction did not take place as per law. In this regard both the courts below have found that any alleged irregularity in the auction was not substantial and that the objections have been filed only to delay the execution. Reliance was placed on Rajender Parshad v. M/s Devi Dayal Ravinder Kumar reported as 1991(2) RCR 522, Gurcharan Singh v. Darshan Singh reported as 1991(2) RCR 263 and Devinder Singh v. Hardev Singh and another reported as 2004(3) RCR(Civil)157. In Gurcharan Singh's case (supra) this Court held as under:- “8. Learned counsel for the respondent has argued that his objection that the value of the land was Rs.40,000/- should have been considered by the lower appellate court. For that it may be stated that no evidence was produced except oral statement made by the judgment debtor. In this respect reference may be made to the decision of the Supreme Court in Radhey Shyam v. Shyam Bihari Singh, AIR 1971 S.C. 2337. The ratio of the decision of the Supreme Court in Ambati Narasayya v. M.Subba Rao and another, AIR 1990 S.C. 119, that by sale of portion of the land, the decree could be satisfied is not applicable to the case in had as provisions o Order 21 Rule 90 of the Civil Procedure are not attracted. In Rajinder Parshad's case(supra) this Court held as under:- “11..............................it is clear from the provisions contained in Rule 90 of Order XXI and the proviso appended ESA No. 4 of 2010(O&M) 3 thereto, that a sale of immovable property can be set aside. If it is shown, firstly, that there has been material irregularity or fraud in publishing or conducting it and, secondly, that the applicant has sustained substantial injury on account of such material irregularity and fraud. The term 'irregularity' means not being in conformity to the Rules prescribed for regulating execution sale. The word 'material' would mean real and not merely formal or academic. So, an irregularity which may be termed as material should be such which affects the ultimate decision of the case. 'Injury' means loss which is wrongful and 'substantial' would mean actual and not imaginary. The material irregularity and substantial injury sustained by the applicant must be co-related with each other as cause and effect. In other words, the substantial injury sustained by the applicant must be the result of material irregularity committed in publishing or conducting the execution sale.............................” Learned counsel for the appellant has not been able to persuade me that the reliance on these judgments is not warranted in law. Consequently this appeal is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE January 27, 2010 sunita