Document Fragment View

Matching Fragments

(iv) Although the court sold the larger property for a sum of Rs.22.65 lakh against recovery of Rs.4,27,068.20 paisa, however, it is not proved on the file that the property sold in auction could be divided and sold in part;

(v) Attachment by way of proclamation and affixation at the spot amounts to constructive knowledge of the judgment debtor and it was incumbent on the judgment debtor to file objection under Order 21 Rule 58 CPC. Failure to do so amounts to waiving off the objections as well as right to object. Courts have found that service of notice under Order 21 Rule 66 CPC is proved to have been effected on one of the employees namely 6 of 20 Malkit Kaur, however, she has not been produced in the court in support of application.

Now in these facts, if this Court applies the twin conditions precedent for setting aside the sale, it is proved that the sale of the property in dispute was conducted by way of public auction without any application of mind and without assessing as to how much property would be required to be sold for satisfaction of the decree. Petitioner has not been given opportunity in the present execution petition to pay the amount under the decree.

Further, prejudice to the petitioner-judgment debtor is established as property having constructed building on it and consist of a godown, a store and a servant quarter which has been sold without knowledge of the executing court. Different buildings constructed over an area of 7000 square yards which was sold for Rs.22.65 lakhs against execution of decree for a sum of Rs.4,27,068/-. Had the executing court applied its mind before ordering attachment and sale of attached property, sale of a small portion of the property would have satisfied the decree. Public auction is always a desperate sale and do not fetch the normal market 19 of 20 price. Public auction is although the only method left with the court to satisfy the decree, however it does not always represent the correct market value.