Improvement Trust, Ludhiana vs Ujagar Singh & Ors

3 Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as "550 Acres Scheme". Reference Court had passed the Award and fixed the amount of compensation at rupees 4,27,068.20 paise together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to approach the Executing Court for recovery of the amount awarded. The property described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M entered in jamabandi for the year 1988-89 in village Jabaddi No.160 Tehsil and District 4 -2- 1 Ludhiana was attached for realisation of the decretal amount. Later a notice under Order 21 Rule 66 of the Code of Civil Procedure (hereinafter shall be referred to as `C.P.C.') was stated to have been issued to the appellant. However, despite service of notice, none appeared on behalf of the appellant /judgment debtor. 2 The property was put to an auction sale on 12/8/1992. Respondent No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as `the Company') offered Rs.22,65,000/-, and thus was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed in its favour.

3 The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. Executing Court then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of 4 judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none appeared on behalf of the appellant. Consequently, the evidence of appellant/judgment debtor was closed. As a necessary consequence thereof appellant's objections came to be dismissed in default due to non- appearance.

The order-sheet dated 29/5/1993 reproduced in the impugned order passed by the learned Single Judge reflected the same. Case was posted for confirmation of sale on 5/6/1993, again there was no appearance and the sale was confirmed in favour of respondent No.5. It is reported pursuant thereto sale deed was executed in its favour 6 7 8 9 10 -3- 11 through court. Out of the bid amount of Rs.22,65,000/- the awarded amount due to respondents 1 to 4 was released, and remaining is lying in deposit with the Executing Court.

3 In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal -7- 1 rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

2 Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. 3 For the aforesaid reasons the impugned orders passed by Appellate Court, and order passed by the High Court, are hereby set aside and quashed. As a consequence, the matter stands remitted to the Executing Court for deciding the appellant's application filed under Order 21 Rule 90 of CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and respondent No.5, both would appear before the Executing Court on 20/7/2010. Being an old case an endeavour would be made by the Executing Court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion, on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits. 4 We are conscious of the fact that respondent No.5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,65,000/- in the year 1992 but has not been able to get any fruits thereof till date. Therefore the appellant's appeal is allowed subject -8- 1 to payment of Rs.50,000/- (Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment of cost is condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the cost through out. In the light of this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid extent only.