Punjab-Haryana High Court
Raj Kumar vs Mohinder Singh on 6 January, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 113 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 113 of 2012
Date of Decision : January 06, 2012
Raj Kumar .... Petitioner
Vs.
Mohinder Singh .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. P. S. Dhaliwal, Advocate
for the petitioner.
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L. N. MITTAL, J. (Oral) :
Raj Kumar - Judgment-debtor (JD) has filed this revision petition under Article 227 of the Constitution of India assailing order dated 02.12.2011, passed by the Executing Court i.e. learned Civil Judge (Junior Division), Barnala, thereby dismissing objections (Annexure P-2) filed by JD-petitioner against auction sale of his attached property in execution of money decree. The petitioner alleged that land has been sold for Rs.1,80,000/- although the land is worth Rs.3,00,000/-. It was also alleged that auction-purchaser is relative of decree-holder (DH).
The objections were resisted by DH. It was denied that C. R. No. 113 of 2012 2 auction-purchaser is related to DH. It was also pleaded that objections have been filed simply to delay the execution proceedings. Various other pleas were also raised.
Learned Executing Court dismissed the aforesaid objections filed by JD, who has filed the instant revision petition.
I have heard learned counsel for the petitioner and perused the case file.
Objections preferred by the petitioner fall under Order 21 Rule 90 of the Code of Civil Procedure (in short - CPC), under which sale can be set aside on the basis of irreuglarity or fraud. In the instant case, no irregularity or fraud in auction sale of petitioner's property is proved. Auction-purchaser is not proved to be relative of DH. Moreover, even if auction-purchaser be relative of the DH, this by itself, would not amount to fraud or irregularity in the auction sale. There is also no evidence to depict that market value of the property sold was Rs.3,00,000/-. Moreover, in auction sale in execution proceedings, the property sold would never fetch the market price because the auction-purchaser would never be sure whether he would get the property at all or not and even if he gets it, it takes several years. Even in the instant case, the sale has been confirmed by impugned order dated 02.12.2011 i.e. more than 3½ years after the auction had been held. Thus, money of auction-purchaser remains blocked and he also does not get the fruits of the property purchased by him in auction. C. R. No. 113 of 2012 3 Consequently, auction sale cannot be set aside merely on account of inadequate consideration.
For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in the impugned order of the Executing Court so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India.
Counsel for the petitioner vehemently contended that the petitioner had made application dated 26.08.2011 (Annexure P-3) under Order 21 Rule 89 CPC for setting aside the sale on deposit of decretal amount and 5% additional amount, but the said application has not been decided by the Executing Court. The contention, although prima facie very attractive, is devoid of merit. Order 21 Rule 89 (2) CPC stipulates that where a person applies under Rule 90 to set aide the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this Rule. In the instant case, petitioner's objections (Annexure P-2) filed under Order 21 Rule 90 CPC to set aside the sale were pending when petitioner moved application Annexure P-3 dated 26.08.2011. The petitioner moved said application without withdrawing his application/objections already pending under Order 21 Rule 90 CPC. Consequently, in view of mandatory provision of sub-rule (2) of Rule 89 of Order 21 CPC, the petitioner had no right to move application under Order 21 Rule 89 CPC because he had not withdrawn his C. R. No. 113 of 2012 4 application/objections already pending under Order 21 Rule 90 CPC.
For the reasons aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed in limine.
January 06, 2012 ( L. N. MITTAL ) monika JUDGE