Allahabad High Court
Viswanath Prasad Bajpai (D) Through ... vs Vth Addl. District Judge And Ors. on 12 October, 2006
Equivalent citations: 2007(2)AWC1337, 2007 (1) ALL LJ 295, 2007 A I H C 761, (2007) 102 REVDEC 317, (2007) 66 ALL LR 8, (2007) 2 ALL WC 1337, (2006) 4 ALL RENTCAS 567
JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. For execution of money decree passed in Original Suit No. 456 of 1964 Execution Case No. 39 of 1971 was filed. In execution proceedings agricultural land belonging to judgment-debtor, admeasuring 8.63 acres was sold in auction for Rs. 5,600 in favour of the petitioner No. 2 on 7.3.1972. Petitioner No. 1 is decree holder and petitioner No. 2 Prem Kumar is auction purchaser, whose bid in the auction dated 7.3.1972 was highest. The sale was confirmed on 8.7.1972. According to petitioner No. 2, possession was also given to him on 8.7.1972. However, this fact was seriously denied by the judgment-debtors respondents.
3. Judgment-debtors on 9.7.1973 filed two objections-one under Section 47, C.P.C. and the other under Order XXI, Rule 90, C.P.C. Objections under Order XXI, Rule 90 C.P.C. were initially registered as Miscellaneous Case No. 89 of 1973, thereafter as Miscellaneous Case No. 120 of 1977 and objections under Section 47, C.P.C. as Miscellaneous Case No. 88 of 1973. The objections were dismissed on 25.4.1977 by Vth Additional Munsif, Deoria. Against the order rejecting objections under Order XXI, Rule 90, C.P.C. Civil Misc. Appeal No. 46 of 1977 was filed by the Judgment-debtors. Civil Revision No. 159 of 1977 was filed against rejection of objections under Section 47, C.P.C. Vth Additional District Judge, Deoria through judgment and order dated 19.7.1982 allowed the appeal, set aside the auction sale by accepting the objections of the Judgment-debtors under Order XXI, Rule 90, C.P.C. The said order has been challenged through this writ petition. (However, learned Additional District Judge dismissed the revision).
4. Learned Additional District Judge held that proceedings for attachment were legal. Accordingly only auction sale was set aside, but the attachment was kept intact and it was directed that fresh auction proceedings should be taken by the trial court/executing court.
5. It has been stated by the learned Counsel for the contesting respondents that after filing of this writ petition judgment-debtors deposited the entire decreetal amount on 4.12.1982.
6. The objections under Order XXI, Rule 90, C.P.C. were barred by time, hence application for condonation of delay under Section 17 of the Limitation Act was filed; Under Section 17 of the Limitation Act there is no question of condonation of delay. By virtue of the said Section limitation itself starts running from the date of knowledge.
7. Both the objections were refused to be consolidated by the executing court.
8. The objections before the trial court were filed by Chhedi Lal and Kailashi against Vishwanath Prasad Bajpai and Prem Kumar.
9. Trial court accepted the contention of the judgment-debtors that the valuation of the property in dispute was not less than Rs. 40,000. however, it held that auction sale cannot be set aside merely on the ground of inadequacy of consideration.
10. The appellate court in its detailed judgment pointed out several irregularities in publishing and conducting the auction sale. According to the appellate court, in fact, no sale took place and it was only a paper transaction which was shown by the Amin in connivance with decree holder and auction purchaser. The appellate court held that in the proclamation of sale only plot numbers of the agricultural land which were sought to be sold in auction were given and it was not mentioned that the said land is situate in which village or tahsil. Annexure-'IA' to the writ petition is copy of the tentative proclamation of sale filed by the decree holder alongwith his application under Order XXI, Rule 66(3), C.P.C. It does not contain name of Village or Tehsil.
11. In respect of limitation appellate court found that no notice was served upon the judgment-debtors and the report of the process server showing that the judgment-debtors after reading the notice refused to accept the same was wrong. In this regard appellate court further held that the said notice was in Urdu and it was not shown that the judgment-debtors knew Urdu. By virtue of Section 17 of Limitation Act if the knowledge of the right on which application is founded is concealed by the fraud of the person against whom application is to be filed then limitation starts running from the date of knowledge. The appellate court found that both the petitioners, i.e., decree holder and auction purchaser fraudulently concealed the proceedings of auction from the judgment-debtors. The findings of non-service of notice being finding of fact is not liable to be interfered with in exercise of writ jurisdiction.
12. The appellate court held that the trial court itself had held that the market value of the land in dispute at the time of auction was about 7 or 8 times of the value for which it was sold, hence sale was liable to be set aside on this ground alone. With this finding I am unable to agree. Mere inadequacy of sale consideration is not a valid ground to set aside auction sale unless the consideration is so inadequate that it shocks the conscience of the Court vide R. Singh v. R. Singh . In the instant case, it cannot be said that consideration is shockingly inadequate.
13. However the sale is liable to be Set aside for the reason that in the proclamation of sale property was not properly identified. In the proclamation of sale only plot numbers of the agricultural land in dispute were given. Neither the name of the Village nor Tehsil was mentioned therein. This was sufficient to set aside the sale. Under Order XXI, Rule 66(2), C.P.C. proclamation of sale shall specify as accurately as possible the property to be sold.
14. Accordingly writ petition is dismissed.