1. The petitioner, the applicant in exhibit-43 application preferred in Special Darkasht No. 81/2007 in the Civil Judge (SD) Court, Vadodara, has filed this petition, inter alia challenging the order dated 23/2/2010 where under the Court has rejected the application exhibit-43 filed by the petitioner under Order-XXI Rule 89 & 90 of Civil Procedure Code for setting aside the sale of the properties in question.
2. Facts in brief leading to filing this petition as could be culled out from the memo deserve to be set out as under.
The petitioner happened to be a partner in a firm called Abhilasha Construction, respondent no.2. The partnership firm obtained financial assistance from respondent no.1 Co-Operative Bank. The loan could not be repaid and hence the bank had to file Summary Lavad Suit No. 356/2004 against the petitioner as well as other partners of the said partnership firm. During pendency of said suit, as stated by the petitioner in the memo, the partnership firm applied for releasing 12 flats and 2 pent houses on condition of depositing 65.00 lakhs. The Board of Nominee vide its order dated 13/5/2005 conditionally permitted the release of said properties on deposit of the said amount. The amount so permitterd to be deposited as a condition for release could not be deposited by the petitioner. The Board of Nominee vide order dated 12/8/2004 granted leave to defend the suit on a condition of depositing 33% of the suit claim with the bank. Said amount also could not be deposited, resulting into passing of the decree on 14/9/2004 in favour of the bank. Said judgment & decree was carried in appeal before the Gujarat State Cooperative Tribunal which came to be registered as Appeal No. 692/2004, which, as per the say of the petitioner was not disposed of. The bank filed darkhast for recovering the amount decreed in its favour. Darkhast being Special Darkhsat no. 81/2004 came to be filed before the Civil Judge (S.D.) Vadodara on 1/11/2007.The application below exhibit – 4 came to be filed for appointment of Court Receiver for bringing about execution of decree. Said application was filed on 2/11/2007 i.e. the next date of filing of darkhast. The court allowed said application on 2/11/2007 itself and Court Receivers were permitted to sell the property and make report to the Court within 15 days. The petitioners have contended that the order dated 2/11/2007 came to be passed without hearing or without issuing any notice to the petitioner. The Bank filed application below exhibit-5 on 1/11/2007 for issuance of warrant for attachment of property in question which on account of the order passed on 2/11/2007 was allowed. The bank preferred application on 10/12/2007 seeking direction that Court Receiver may sell or dispose of the property in question which came to be allowed vide order dated 10/12/2007. The property being 12 flats and 2 penthouses came to be sold to third parties i.e.. 12 flats in favour of respondent nos. 7, 8 & 9 in pursuance of the order passed by the court. This sale was proceeded by an advertisement for auction released by the Court Receivers in Loksatta daily on 21/11/2007 which did not mention the upset price for the property and therefore it is contended on behalf of the petitioner that the advertisement was not in consonance with law. One more advertisement being advertisement for sale of bungalow was released on 13/1/2008 and the sale was concluded in favour of respondent no.10 by the Court Commissioner/ Receivers.
3. The petitioner preferred petition on 28/12/2007 being Special Civil Application No. 31094/2007 challenging the sale proceedings of 12 flats and 2 penthouses on the ground of fraud and also on the ground that there was buyer available who was prepared to pay Rs.1.7 crore for the said property. On 5/3/2008 this Court (Coram: Akil Kureshi, J) directed the proposed buyer suggested by the petitioner to deposit a sum of Rs.50.00 lakhs and ordered status-quo to be maintained on filing of undertaking to that effect. On 6/3/2008 the undertaking as directed was submitted by the proposed buyer. The respondent no. 7 and others as per the submission of the petitioners, preferred Letters Patent Appeal being LPA No. 314/2008 challenging the order dated 5/3/2008 on 1/4/2008. Division Bench granted stay of the said order in LPA No. 314/2008, considering the contention canvassed on behalf of respondent no.7 and others that appropriate remedy to the petitioner was under provision of Order 89 & 90 of Civil Procedure Code 1908. The petitioner being aggrieved with the order passed by the LPA Bench preferred Special Leave Petition No. 9515/2008 in the Supreme Court which ultimately came to be withdrawn on 21/4/2008 as the respondent bank had filed application before the executing court that it had not instructed therein its advocate to do any act in respect of sale of the properties by the Court Receiver. At this stage learned advocate for the respondent no.7 contended that the said application was filed qua the property in form of bungalow as by then the properties in form of flats and penthouses were already sold. The petitioner preferred application in the darkhast proceedings being application exhibit-43. Said application was filed on 20/6/2008 as the said application below exhibit-43 came to be filed during pendency of the writ petition being SCA No. 31904/2007, petitioner made a request on 17/7/2008 seeking permission of this Court to withdraw the petition with a view to prosecute the application which was below exhibit-43. This Court (Coram: M.R. Shah, J) vide order dated 17/7/2008 permitted the petitioner to withdraw the petition after recording consent of the respondents advocate that the application should be decided on merits within three months. LPA being LPA No. 314/2008 preferred by respondent no.7 & others came to be dismissed by this Court (Coram: M.S. Shah & D.H. Waghela, JJ) on 25/7/2008 on the ground that same had become infructuous.
4. The respondents herein above, as stated by the petitioner, preferred Misc. Civil Application no. 2109/2008 and 2110/2008, inter alia contending that the consent recorded earlier for deciding exhibit-43 application on merits be permitted to be withdrawn. This Court vide its order dated 7/10/2008 while disposing of the Misc. Civil Applications directed that, in view of the serious allegation of fraud made against the Court Commissioner / Receiver and in view of the fact that properties worth Rs.1.7 crores was sold for Rs.80.00 lakhs, the applications of the petitioner for setting aside the sale be decided on merits. Being aggrieved by the order dated 7/10/2008 passed by this Court in Misc. Civil Application No. 2109/2008 and 2110/2008 in Special Civil Application No. 31094/2007, the respondent no.7 & others preferred Special Leave Petition No. 26745/2008 and No. 26746/2008 before the Supreme Court which came to be disposed of by the Supreme Court vide its order dated 23/3/2009, inter alia recording that the question of limitation be decided by the executing court considering the scope and applicability of Section 5 and 14 of the Limitation Act. It was also directed that in any case the executing court shall record its finding as to whether there was fraud in conducting the sale. The executing court thereafter passed detailed order on 23/2/2010 rejecting the application below exhibit-43, hence the present petition under Article 226/227 of the Constitution of India.
5. Learned counsel for the petitioner contended that the order impugned is required to be quashed and set aside as it is passed without following the mandatory provisions for bringing about valid sale in execution proceedings. It is contended that the order impugned is passed without appreciating the facts which would have established that the sale was not in consonance with mandatory provisions of Order-21 Rule 54 of Civil Procedure Code. The Court may take into consideration that in the proceedings of execution when an order was passed contrary to the provisions of law and when the same order is challenged before this Court, then, it can well be said that the judgment debtor was pursuing his remedy in law. The submission therefore canvassed on behalf of respondent no. 7 to 9 that there was no appropriate application till and after sale certificate was issued would be of no avail. The sale and the sale certificate issued on 29/2/2008 and 17/5/2008 were prayed to be quashed and set aside. On the basis of the aforesaid submissions it was urged that the petition may be allowed and the order impugned be quashed and set aside.
6. Learned counsel for the respondent no. 7, 8 & 9 contended that the sale has attained finality as the application under Rule 90 of Order 21 or for that matter Rule 91 also was not preferred till the sale was concluded.
7. After concluding the arguments the counsels for the parties sought permission to place on record the written submissions which was granted and accordingly both the counsels have placed their written submissions in support of their oral submissions so as to articulately place on record their respective say.
8. This Court is of the view that respective written submissions may be reproduced in verbatim so as to reflect the exact contentions raised on behalf of both the parties.
9. Learned counsel for the petitioner has submitted written submissions which are reproduced as under:-
“(1) The sale of 12 flats, 2 penthouses and 1 bungalow in respect of which share certificates have been issued on 29.02.2008 and 17.05.2008 respectively is required to be set aside on the following grounds:
(a) On 02.11.2007 decree-holder in Execution Petition No.81 of 2007 filed application for attachment vide Exh.5. The order which ought to have been passed on such application should have been an order under Order 21 Rule 54 of the Code of Civil Procedure, 1908 in terms of Form No. 24 of Appendix-E. The said order should have provided for service of notice to the judgment- debtor with an order to attend court for the purpose of fixing the terms of proclamation of sale. The Hon'ble Court instead of passing such order directed the receiver for sale of property and to recover the amount due to the bank (See page 74/74A of the paper book) . Such order therefore was ex-facie bad and also subsequent proceedings pursuant thereto are required to be quashed and set aside, including the confirmation of sale, which is required to be treated as nullity in view of violation of Order 21 Rule 54 of the CPC.
(b) The advertisement for sale of flats was issued on 21.11.2007 without any settlement of proclamation being drawn up by the court much less after notice to the judgment-debtor and decree-holder as contemplated under Order 21 Rule 66 of the CPC. The proviso to sub- rule (2) of Rule 66 of the CPC contemplates that no notice of the date of settling the terms of proclamation under Order 21 Rule 66 of the CPC is required to be given if notice was issued by an order under Order 21 Rule 54 of the CPC. As no such notice was ordered to be issued to the judgment-debtor under Order 21 Rule 54 of the CPC the proclamation could not have been drawn up by the court without specific notice to the judgment- debtor and decree-holder. The advertisement was therefore completely irregular and should even be termed as fraudulent in so far as no valuation of the property was done before such advertisement nor any valuation was sought from the decree-holder or the judgment-debtor and no upset price was fixed for such so-called auction sale. All consequently steps pursuant thereto including the sale and certificate issued under Order 21 Rule 94 of the CPC are required to be quashed and set aside.
(c) On 18.12.2007 the petitioner appeared before the Executing Court to oppose the certificate of sale. As no interim relief was granted the petitioner approached this Hon'ble Court by way of Special Civil Application No. 31094 of 2007, inter alia, challenging order dated 02.11.2007 passed below Exh.5 as well as seeking setting aside of the sale. The petitioner could have filed application under Order 21 Rule 90 of the CPC but instead approached this Hon'ble Court for setting aside the sale and for sale. This petition was served to the purchasers around 2nd week of January, 2008. The petitioner submits that this petition is a substance an application under Order 21 Rule 90 of the CPC filed before this Hon'ble Court instead of the learned trial Court. The certificate of confirmation of sale issued Order 21 Rule 94 of the CPC was issued pending this writ petition. Had the petitioner filed an application under Order 21 Rule 90 of the CPC instead of writ petition, the certificate would not have been issued till such application was disallowed. If the writ petition is considered in substance and application for setting aside sale, the confirmation of sale having been granted by the Court without disposal of such writ petition is of no consequence.
(d) The petitioner having already filed the writ petition intimating the executing court and requested the executing court vide applications dated 17/1/08, 11/2/08, 22/2/08 and 28/2/08 to adjourn the proceedings and not to proceed further and although the applications dated 17/1/08 and 11/2/08 was granted, other applications were rejected and sale was confirmed on 29.02.2008 in spite of the fact that the writ petition in this Hon'ble Court was posted for hearing within three days thereof. This shows the hurried manner in which the receiver and the Hon'ble Court issued the certificate of sale and the same should be set aside.
(e) This Hon'ble Court on 05.03.2008 granted status- quo in Special Civil Application No. 31094 of 2007 on condition of the petitioner depositing Rs.50 lacs, which was deposited as required by 19.03.2008. The said order was stayed by Hon'ble Division Bench of this Hon'ble Court on 01.04.2008 on the ground that the petitioner had alternative remedy under Order 21 Rule 89 and 90 of the CPC. The Special Leave Petition against this order was withdrawn on 21.04.2008. In the circumstances, the petitioner being advised that proper remedy was to file an application under Order 21 Rule 90 of the CPC, filed such an petition on 20.06.2008 contending irregularity and fraud. In light of this the petitioner sought permission to withdraw the writ petition. No one raised the plea that Order 21 Rule 90 application was not maintainable as the sale certificates were issued. The only plea raised that too in MCA filed for review was that the respondent should be permitted to raise the plea of limitation. Against the order permitting withdrawal of writ petition and rejection of review, SLP was preferred by the respondent, auction-purchaser, which was dismissed with, inter alia, with the direction to the Executing Court to give a finding on fraud and also to decide the scope and applicability of Section 5 and Section 14 of the Limitation Act.”
The petitioner submits that although Order 21 Rule 90 application has been filed subsequent to certificate issued under Order 21 Rule 94, the same has to be treated having been preferred in the wrong court on 29.12.2007. Even otherwise there is clear case of irregularity and fraud for the reason explained above, which has resulted in a sale at serious under valuation and the same is required to be set aside in light of the following decisions: (i)2008(13)SCC 113; (ii) AIR 1995 SC 1971; (iii) 1994 (1) SCC 131; (iv) 1993 (4) SCC 414;
(v) 1987 (4) SCC 717; (vi) 1973 (2) SCC 629; (vii) 2008 (10) SCC 440; (viii) 2011 (2) GLR 1133;
(f) The limitation has to be extended under Section 14(2) of the Limitation Act since the petitioner was a bona fide proceeding before wrong court (by way of writ petition filed on 29.12.2007). In light of following decisions: (I) AIR 2004 SC 1596; (ii) 2009 (1) SCC 786;
(iii) AIR 2003 (Bom.) 11; (iv) AIR 2009 SC (Supp.) 1281;
(v) AIR 2004 SC 3079.”
10. Learned counsel for Respondent no. 7, 8 and 9 submitted their written submission, verbatim thereof is reproduced here under:
“1. A Sale through the court auction can be set aside only if the condition of Order 21 Rule 90 are satisfied and upon filing of an application to set-aside sale within the period of time, failing which the sale becomes absolute and complete under Order 21 Rule 92 on issuance of a sale certificate under order 21 Rule 94.
2. In the present case the application for setting aside sale under Order 21 Rule 90 came to be filed by the petitioner only on 20.6.2008 (at page 358 to 361) almost 4 months after the issuance of sale certificate under order 21 rule 94 with full knowledge of the proceeding before the executing court much after filing Vakalatnama on 18.12.2007 and after repeatedly appearing before the executing court time and again from 18.12.2007 till 29.2.2008 requesting for time when the executing court had directed the petitioner to file application under order 21 Rule 90 or else sale shall stand confirmed. In light of the above facts it is pertinent to refer to the provision of Order 21 Rule 92 and the import of the following provision:-
“Rule 92 (1)- Where no application is made under order 89, 90 or rule 91 or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute.
The petitioner in the present case has consciously chosen not to file an application under Order 21 Rule 89, Rule 90 or Rule 91 and thus on account of non-filing of such application the confirmation of sale has taken place on 20.6.2008. It is respectfully submitted that “grounds of challenging a sale” and “non filing of application to set aside sale” are provided disjunctively under Order 21 Rule 92. Therefore the ground of challenge cannot condone the affect of non-filing of an application an interpretation to the contrary would render “Where no application is made under order 89, 90 or rule 91 court shall make an order confirming sale” redundant. Further the legislature while framing Order 21 Rule 92 was conscious of the provisions of Order 21 Rule 90 and the fact that fraud and material irregularity if proved with substantial injury can be ground under which a sale can be set aside, in spite of the same, order 21 Rule 92 provides that non-filing of an application within time leads to confirmation of sale. Therefore Order 21 Rule 92 is not governed or influence in any manner by the grounds of setting aside sale when no application is filed and the non-filing of application itself is enough for the court to confirm sale irrespective of grounds of challenge.
\The Respondents further submit that filing of the Petition SCA 31094 of 2007 on 28.12.2007 under Article 227 of the Constitution of India cannot have a bearing on the import of law under Order 21 Rule 92 in as much as Rule 92 refers to an application under Order 90 Rule 89, 90 or 91 and not a writ petition and further this Hon'ble Court had passed no restraint orders in the petition till the confirmation of sale took place. The order passed by the Supreme Court of India on 23.3.2009 in SLP 26745- 26746 of 2008 (at Page 378) also cannot confer a right on the Petitioners now to pursue proceedings contrary to the provision of law nor the same can be construes as a waive of the right of the right of the Respondents to object the same under Order 21 Rule 92, as there cannot be a waiver to a statutory provision. In light of the above facts, it is respectfully submitted that the petitioner has acquiesced in the sale becoming absolute and now the same is immune to any challenge at his instance.
Without prejudice to the aforesaid Contention:
3. The Respondents submit that in the application filed under Order 21 Rule 90 (at page (358 to 361) there is no averments of fraud or material irregularity the only contention raised in the application is that the property were sold at a lesser price. Having regard to the contentions of the Application the petitioner has failed to establish material irregularity, fraud but also as to how material irregularity and fraud has resulted in substantial injury to the petitioner that being a condition precedent for setting aside sale. In this regard reliance in placed on the decision of:
(a) Supreme Court in the case of (Saheb Khan Vs Mohd Yusufddin) reported in 2006 (4) SCC 476 paragraph 13 and 14 on pre-condition of setting aside sale and allegations of fraud;
(b) Pleadings of fraud-1996 (10) SCC 747 at para-4.
4. It is respectively submitted that the inadequacy of price of the property alone cannot be a ground for setting aside sale under Order 21 Rule 90. In support of this proposition the Respondents refers to and rely upon the following decisions:-
(a) AIR 1974 SC 1331 at Para 9;
(b) AIR 1970 Delhi 56 at Para 3 and 4;
(c) AIR 1964 Gujarat 126 Para 7 & 8.
5. The application filed by the petitioner under Order 21 Rule 90 is barred by limitation being filed after 60 days from the date of sale as per Article 227 of the Limitation Act. The date of sale as per the sale deed at (page 84 to 338) was executed on 15-12-2007 whereas the sale certificate was issued on 29-2-2008.The application under Order 21 Rule 90 was filed on 20.6.2008 clearly beyond 60 days from15-12-2007 or 29-2-2008. Pertinent to mention here that section 5 of the limitation act 1963 is not applicable to any application under Order 21 CPC, thus extension of limitation is not available to the petitioner under Section 5. Further the provision of Section 14 of the limitation act is also not available to the petitioner as the pre-condition for applicability of Section 14 as held by the Supreme Court in the case of “Consolidated Engineering Enterprise Vs. Principal Secretary Irrigation” reported in 2008 (7) SCC 169 are not satisfied. In the present case:-
(a) Both the prior or subsequent proceedings were not civil proceedings since a petition filed before this Hon'ble Court cannot be construed as a civil proceeding having regard to the provisions of Section 141 of CPC;
(b) The proceedings was not prosecuted with due diligence and in good faith in as much as after 18.12.2007 the petitioner has time and again appeared before the Executing Court till 29.2.2008 and the application was also filed after 2 months of the order dated 21.4.2008 passed by the Supreme Court of India in SLP 9515 of 2008.
© The failure of the prior proceeding was not due to defect of jurisdiction or other causes of like nature. The petitioner had voluntarily filed proceeding under order 21 Rule 90 before the executing court as recorded in the order dated 17.7.2008 passed in SCA 31094 of 2007 at page (362-363).
The Respondent refers to and relies upon the following further decisions:-
(i) AIR 2005 SC 3460 at page 3461;
(ii) 2002(6) SCC 336 at page 337;
(iii) 1998(6) SCC 200 at page 201-202 In light of the above the application filed by the petitioner under Order 31 Rule 90 is barred by limitation and the same deserved to be dismissed on this ground alone.
6. No irregularity was caused with regard to attachment of the immovable property under Order 21 Rule 54 or Rule 66 of CPC. The Respondent refers to and relies upon the finding of the court below at (page 451to 454) and the fact that:
(a) Order was passed on 2.11.2007 (at page 74- 74A) with regard to issuance of warrant of attachment of sale of the property;
(b) The Warrant of attachment was affixed on the property by beat of drums as recorded in the final report of the receiver at page 577-584;
(c) Public advertisement for auction sale published in lok-satta newspaper on 21.11.2007 and auction sale was held on 26.11.2007.
Having regard to the above the procedure under Order 21 Rule 54 and 66 was duly followed. The value of the property being not mentioned in the proclamation of sale is without any basis having regard to the proviso to Rule 66 and as per the decision of this Hon'ble Court reported in AIR 1964 GUJ 126. The petitioner in any case was put to notice under the warrant of attachment and the advertisement issued on lok-satta. It is further submitted that there was no irregularity also in the conduct of auction or that the property were sold at a price lower than the market price. As indicated in the public notice and reflected under the report of the Receiver. The properties were sold for a total consideration of Rs.78,25,251/- which was within the price range of the report of the valuer that indicated total price of the property to be in the range of Rs.73 lakh to 89 lakhs (page 454 – 468 of the impugned order). The reference to jantri price of the property is without any basis as the property are incomplete in construction and unfinished as recorded in the valuation report and report of the receiver as well as in the impugned order at page 468. In the light of the above there was compliance with the provisions of Order 21 rule 54 as well as Rule 66 and there was no irregularity in publishing or conducting sale that can be said to give rise to a ground of challenge under Order 21 Rule 90. Assuming without admitting that the notice of attachment issued by the court was not as per the form would only be at the most a mistake at the instance of the Court and the same would not under any circumstance vitiate sale, having regard to the mandate of Order 21 Rule 90 and the explanation thereto.
7. The notice to the petitioner was not required to be issued under that provisions of Order 21 Rule 22 since in the present case the decree dated 14.10.2004 became enforceable pursuant to issuance of certificate under Section 103 (a) of the Cooperative Society Act on 16.7.2007 and the execution proceeding under Darkhast no 81 of 2007 was filed within 2 years thereof on 1.11.2007.Thus the provision of Order 21 Rule 22 was not applicable in the present case.
8. The present proceedings are filed under Article 227 of the Constitution of India and the scope of judicial review is very limited. In the present case the detailed order passed by the trial court shows no manifest error or disregard calling for any interference by this Hon'ble Court, it is also submitted that against the order of rejection of Application under Order 21 Rule 90 an appeal from order shall lie and this petition on this ground also is not maintainable under Article 227 of the Constitution of India.
9. The Respondents also submit that notwithstanding the grounds alleged by the petitioner, Respondents are bonafide purchasers of the property and it is not the case of the petitioner also that there was any collusion by the Respondents in the proceeding and thus on this ground also the court may not interfere with the sale in favour of the Respondents.”
11. Learned counsel for respondent no.10 also submitted its written submissions as under:
Earlier round of litigation up to Hon'ble High Court and Hon'ble Supreme Court, the respondent no.10 was not party in the proceedings. But the present petitioner was aware of attachment of this property of plot no. 18 in “Tarun Co.Op. Housing Society”.
5.11.2007: Attachment of plot no.18 in “Tarun Co Op. Housing Society” by court commissioner in presence of panchas.
18.12.2007: The present petitioner appeared before Executing Court through an Advocate & regularly remain present before court as observed by the executing court on page no. 424 (fifth line form bottom)
On 14.01.2008 : Notice for public auction was published in daily news paper “LOKSATTA”. The said fact was within the knowledge of the petitioner. But chosen to remain silent.
On 03.03.2008: Registered sale deed was made in favour of the respondent no.10 as reflected on page no.342 of the petition (no stagy was operated on that days).
On 19.05.2008: Sale Certificate was issued by the Executing Court.
Till then the present petitioner remained silent nor made nay attempt to prevent auction sale of his property.
On 5.03.2008: Hon'ble Justice Akil Kureshi had passed the order and declared that “ There is no stay against any other execution proceedings or sale of any other properties of the petitioner. [Page no. 353] and thus justified proceedings of the receiver.
In application under at Exh.43, the petitioner had neither narrated/pleaded any substantial injuries regarding bungalows nor tried to prove any substantial injury sustained by reason of fraud or irregularity.
Therefore, bar of Order 21 Rule 90(2) to set aside sale on the ground of irregularity or fraud in publishing or conducting it.
The respondent no.10 is the bonafied purchaser and had taken part as the sale was conducted under the instructions of the court of Law and respondent no.10 had deep faith in the Judiciary.
The respondent no.10 had invested huge amount of Rs.23,51,250 in the year 2008.
Therefore, the petition is required to be dismissed against respondent no.10.”
12. Against the aforesaid factual backdrop, this Court is to decide the controversy which actually is in a narrow compass. The counsels while arguing the matter have heavily relied upon provision of Order-21 Rule 54 and therefore, in order to ascertain the actual facts and format of orders the Court was requested to call for record & proceedings which request was accepted and this Court called for record & proceedings. After perusal of the said record & proceedings and after hearing counsels of all the parties extensively, this Court is to draw following conclusion based upon close perusal of the record & proceedings which are required to be set out herein below for appreciating the contentions in respect of compliance or non compliance of provision of Order-21.
(1) The Darkhastdar as mentioned in column-5, there appears to be a mention of depositing of Rs.50.00 lakhs and some order below exhibit-114 without any further observation and allegation that there was non-compliance with the order dated 13/9/2005. In short when the execution application came to be filed, in that very execution application there was mentioning of deposit of Rs.50.00 lakhs by the Darkhastedar bank itself qua the decreetal amount. Therefore the recoverable amount was mentioned to be Rs.1,58,92,926/-.
(2) The executing court appears to have made an order on the darkhast on 2/11/2007 of attachment under Order 21 Rule 54 and issued warrant of attachment. Exhibit-4 application came to be filed along with darkhast as it bears the date of 1/11/2007.
(3) The darkhastedar moved an application on 3/11/2007 for execution of warrant by affixation under Order 21 Rule 54 below exhibit-10. The warrant under order 21 Rule 54 i.e. Exhibit-10 was issued on 3/11/2011. A close perusal of exhibit-10 warrant issued under order 21 rule 54 does not contain any direction or information qua the next date of hearing or any other information except declaring that the property mentioned there-under are under attachment and the judgment-debtor is restrained from alienating it in any manner. In short the requirement under Order-21 Rule-54(1-A) does not seem to have been fulfilled in any manner. This has a vital and substantial bearing upon the controversy and rival submissions, therefore this is required to be specifically mentioned at this stage that warrant exhibit-10 was not in the form of Format no. 24 as prescribed under the Code of Civil Procedure,1908 in as much as it do not contain any direction where under the judgment-debtor would know or take a notice of the date of hearing for settling the terms of proclamation of sale.
(4) The report of the Bailiff is dated 12/11/2007, wherein also it is mentioned that the warrant is executed by affixation on the property in question. The newspaper cutting containing advertisement, for auctioning the property in describe as plots, dated 21/11/2007 has been placed on records which indicate that the bids were invited for the property mentioned there under to be as per the address given below and were to be received by the receivers by 25/11/2007. The opening of the bids was on 26/11/2007. The conditions mentioned there under do not indicate that there was any upset price fixed. The advertisement contains description of the property but do not contain the plot numbers etc.
(5) The advertisement for auctioning the property in form of bungalow was issued on 13/1/2008 where under bids were invited to be submitted latest by 17/1/2008 and they were to be opened by 18/1/2008.
(6) The valuation report was received by Receivers from the valuer on 22/11/2007. The value for property was said to be just if it is fetching Rs.73 lakhs to Rs.89,73,000/- and for bungalow Rs.22,18,000/- to 23,78,400/-. In respect of both these properties, i.e. property in form of flats and property in form of bungalow the auction was held and completed on 26/11/2008 and 18/1/2009.
(7) As it is stated herein above in this judgment the property in form of flats were offered to be purchased by 3 parties viz. Respondent no.7, 8 and 9 and the bungalow came to be purchased by respondent no.10. It is required to be noted that so far as the property in form of flats are concerned 2 bids were received and the consortium bid was found to be highest and therefore Court Commissioner finalized bid in their favour. So far as bungalow is concerned there were 4 bids out of which, bid for Rs.23,51,250/- being the highest, the offer of said bidder was finalized and the sale deed in favour of the parties were executed and sale certificates were issued as stated in the petition.
(8) Various applications made by the judgment debtor urging the Court not to pass final orders and not to issue sale certificates, are noticed from the record. It also appears that the requests made on behalf of the judgment-debtor for differing issuance of sale certificates were accepted by the court for some time. Ultimately the court did not consider it to be proper not to issue sale certificate as there was no prohibitory order operating which would have restrained the court from issuing sale certificates and hence sale certificates were issued.
(9) The certificate was issued on 29/2/2008, so far as the property in form of flats are concerned. Sale certificate was issued on 17/5/2008 so far as the bungalow is concerned.
13. The entire set of circumstances and development of facts narrated herein above needs to be constantly borne-in-mind while examining the rival contentions raised by counsels for the parties. Provision of Order-21 of Civil Procedure Code contains detailed provisions and provides for the measures to be taken for executing decrees and orders passed by the courts in civil matters. The order impugned in this petition is required to be examined in light of the relevant provisions of Order-21 and the relevant rules pressed into service by both the sides in support of their respective submissions.
14. The facts remain to be noted that the provision of Order-21 Rule 54 provides for attachment of immovable property. The Rule 54 of Order 21 indicate that the executing court is required to pass an order prohibiting judgment-debtor from transferring or encumbering the property in any way and all persons from taking any benefit from such transfer or encumbrances. In other words by passing prohibitory orders the executing court restrains the judgment-debtor from dealing with the property in any manner and also by holding out in-ram to all the concerned from receiving any benefits from transfer or encumbrances at the behest of judgment- debtor once the prohibitory orders of attachment are passed. The close reading of this provision would amply indicate that the judgment-debtor is to be served with prohibitory order. The word 'served' as such is not occurring in the provision, but it cannot be gainsaid that the order is in respect of immovable property, is for prohibiting judgment-debtor from alienating the property and is restraining the transferors to receive any benefit from such transfer. Rule 54 (1-A) provides that order shall also require the judgment-debtor to attend the court on a specified date to take notice of the date to be fixed for settling terms of proclamation of sale. Sub rule (2) of Rule 54 of Order-21 provides the mode for proclamation of the order of attachment. Rule 55 of Order 21 provides for the circumstances in which the attachment is to be removed after satisfaction of decree. In other words mere attachment of the property and proclamation of the order of attachment placement of restraint upon judgment debtor and order of judgment proclaimed to ram in its self would not be amounting to any prohibition against judgment debtor from satisfying the decree and seeking removal of attachment. The attachment is to be removed if the decree is set aside or is otherwise satisfied which would not require attachment to remain in force thereafter. Rule 58 of Order 21 provides for adjudication of claims or objection to attachment of property and Rule 59 of Order 21 provides staying the sale proceedings in a given case. Rule 64 provides for putting the sale proceeds to the person entitled. Rule 65 provides for as to how sale is to be conducted and completed.
15. The most important aspect requiring consideration of this Court in light of the submissions canvassed is Rule 66 of Order 21 that is proclamation of sale of property to be auctioned. Provision of Rule 66 of Order 21 needs to be set out as under.
“66. Proclamation of sales by public auction – (1) Where any property is orders to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold [or, where a part of the property would be sufficient to satisfy the decree, such part];
(b) the revenue assessed upon the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property;
[Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under the rule to the judgment-debtor unless the Court otherwise directs;
[provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.]
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner herein before prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.”
Thus, plain reading of Rule 66 of Order-21 would clearly indicate that the proclamation of the intended sale is required to be made in the language of the Court and such proclamation is required to be drawn after notice to the decree holder and the judgment debtor and shall contain the factors mentioned there-under. The proviso to Rule 66 (2) provides for dispensing with the notice to judgment-debtor in a case where there is already notice given to the judgment debtor of the date for settling the terms of the proclamation, by means of an order under Rule 54, unless it is deemed otherwise by the Court.
16. Thus notice to judgment-debtor that the Court is to settle the terms of proclamation is absolutely essential and absence of notice would seriously prejudice the rights of the judgment-debtor as is clear from the plain language of the provision of Rule 66 (2).
17. Proviso to sub rule (2) of Rule 66 clearly indicate that though the court's own estimate of the value of the property is not required to be mentioned in the proclamation but the proclamation shall include the estimate if any given by either or both the parties. This proviso read with earlier proviso conclusively go to show that what is the importance of issuing notice to judgment debtor and it is open to the judgment debtor to suggest his estimate of value of the property. Therefore the judgment debtor is entitled to notice, if he is already not notified under the order of attachment under Rule54, the date and time on which terms of proclamation for sale are to be finalised by the court. Learned counsel for respondent/auction purchaser submitted that the requirement of notice is dependent upon the absence of notice under Rule 54 and when a specific provision is made for the mode of making proclamation in terms of provision of Rule 67 then in a given facts of the present case it can be said that there was sufficient notice to the judgment debtor and therefore the sale cannot be said to be vitiated in any manner. Learned counsel or the respondent-auction purchaser invited Court's attention to Rule 67 which read as under.
“67. Mode of making proclamation – (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).
(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the court, otherwise be given.”
18. The contention raised on behalf of respondent / auction purchaser based upon this provision is that when the proclamation is made as prescribed under Rule 54 (2) and when first proviso to Rule 66(2) is clear then the proclamation in accordance with terms of Rule 54(2) would be sufficient notice and in absence of specific word “served” judgment debtor is not entitled to receive any specific notice. The affixation of the attachment or on the property i.e. immovable property is sufficient notice to the judgment debtor.
19. The Court is unable to accept this submission canvassed on behalf of learned advocate for respondent / auction purchaser that no notice for settling terms of sale proclamation was required to be issued and served upon the judgment debtor, once the attachment order and proclamation of attachment is affixed in terms of O.21 R.54. This submission presupposes that there is proclamation of attachment in terms of O.21 r.54 but in the instant case as record reveals the exhibit 10 warrant of attachment was not issued in Form No. 24c of CPC nor did it contain any date of date for settling the terms of the sale proclamation. Thus the condition in proviso to O.21 R.66 had not been fulfilled and hence that proviso had no applicability in the instant case. The Court was under obligation to serve notice upon the judgment debtor intimating him the date for settling the terms of the sale proclamation.
20. The close perusal of the order and warrant under Rule 54 of Order 21 which is in form of exhibit-10 which is noted herein above do not contain any notice as to the date of settling the terms of proclamation of sale. The Civil Procedure Code has specifically provided measures under which the attachment in execution is made and language of prohibitory order. The same is occurring in Appendix 'E' which requires to be set out as under .
“ No. 24 Attachment in Execution Prohibitory Order, Where The Property Consists of Immovable Property.
(O. XXI, r. 54) (title) To . Defendant Whereas you have failed to satisfy a decree passed against you on the ................... day of ................
19..../20...., in Suit No........ of 19..../20....., in favour of ............ for Rs............, It is ordered that you, the said.................., be, and you are hereby, prohibited and restrained, under the further order of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise.
[It is also ordered that you should attend the Court on the .............. day of........19.../20...., to take notice of the date fixed for settling the terms of the proclamation of sale.] Given under my hand and the seal of the Court, this...... day of........19..../20....
Schedule Judge”.
Reading the warrant exhibit-10 in juxtaposition of the Form-24 it becomes absolutely clear that the warrant did not contain any date or even proposed date or specified date of hearing which would have been construed as notice to the judgment-debtor of the date to be fixed for settling the terms of sale proclamation as envisaged under Rule 67 of Order-21 of Civil Procedure Code.
21. The citations relied upon at the Bar in support of the contention that the sale in execution without due notice to the judgment debtor is nullified can be of avail to the petitioner. Learned counsel for the petitioner has relied upon decision of the Apex Court in case of Mahakal Automobiles And Another Vs. Kishan Swaroop Sharma, reported in (2008) 13 SCC 113. Observations made in para no. 12 & 15 would clearly show that the Court has laid down proposition that notice as envisaged under Order-21 Rule 66(2) is required to be served personally to the judgment-debtor. The observations of para no.11, 12 & 15 needs to be set out as under in order to appreciate the law laid down by the Apex Court in this behalf.
“11. When a property is put up for auction to satisfy a decree of the court, it is mandatory for the court executing the decree, to comply with the following stages before a property is sold in execution of a particular decree:
(a) Attachment of the immovable property;
(b) Proclamation of sale by public auction;
(c) Sale by public auction.
Each stage of the sale is governed by the provisions of the Code. For the purposes of the present case, the relevant provisions are Order 21 Rule 54 and Order 21 Rule 66. At each stage of the execution of the decree, when a property is sold, it is mandatory that notice shall be served upon the person whose property is being sold in execution of the decree, and any property which is sold, without notice to the person whose property is being sold is a nullity, and all actions pursuant thereto are liable to be struck down/quashed.
12. The admitted position that has emerged is that:
(i) There was no notice served upon the judgment-debtor under Order-21 Rule 54(1-A)
(ii) There was no valuation of the property carried out.
(iii) There was no proclamation of sale as per the statutory provisions of the M.P. Civil Court Rules, 1961 read with Order 21 Rule 66.
(iv) There was no publication of the sale.”
15. The records do not reveal that the appellant judgment-debtor was served with a notice as required under Order 21 Rule 54(1-A) of the Code in Appendix B, Forms 23, 24 and 29. It is to be noted that the records reveal that the address of the appellant as contained in the sale deed was different from the address at which the process server purportedly affixed the notice on the door and in the open court and at the choraha only. It has also to be noted that under Order 21 Rule 66(2) the service of the notice has to be personally effected on the judgment-debtor. That also does not appear to have been done. Interestingly, the valuation of the property as required to be done under the proviso to sub-rule (2) of Rule 66 of Order 21 of the Code has not been done. The same appears to have been valued on the spot at Rs.9,00,000 and it was not done by the court. There are admittedly other non-compliance with certain requirements. We do not think it necessary to deal with those aspects in detail in view of the order proposed to be passed. From the records it is revealed that Rs. 14,38,893 and Rs.4,46,926 have been deposited by the appellant purportedly for satisfaction of the Executing Courts, Ujjain and Indore e respectively. The appellant shall be responsible for payment of the property tax of the property from the date of execution of the sale deed i.e. 5/12/1986 till date and the same shall be deposited with the authority concerned within the aforesaid period of four months. On payment of the amounts, the title of the property described in the registered sale deed will vest free of all encumbrances in the appellant.”(Emphasis is supplied)
22. Learned counsel for the petitioner also relied upon the decision of the Apex Court in case of Nani Gopal Paul Vs. T. Prasad Singh and others, reported in AIR 1995 S.C. 1971 in support of his contention that the illegality in the sale would vitiate the sale and the Court cannot remain mute spectator to obvious and manifest illegality committed in conducting court sale even if application is not filed within time prescribed. Reliance is placed upon observations made in para no. 4 & 5.
“4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21, Rule 89 or 90 or under S. 48, C.P.C. need to be filed within limitation to have the sale conducted by the Court set aside and that procedure need to be insisted upon, we are of the view that this Court or appellate Court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting Court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal.
5. Accordingly, the sale and confirmation thereof on 29-8-1990 are set aside the appeal is remanded to the High Court and the appropriate single Judge would proceed to conduct the sale in accordance with law by open auction after due publication of the sale so that all the intending bidder would have opportunity to participate in the sale. Thereafter, it would take action according to law. Since it is a suit for foreclosure and the preliminary decree has become final, it is not open to any party to widen the scope of the suit or sale made pursuant to the preliminary decree. If any party has got any other right or remedy, the same has to be worked out elsewhere, according to law and not in this suit. We are not expressing any opinion with regard to the rights, if any, of respondent Nos. 1 and 2 in the property.”
(Emphasis is supplied)
23. Learned counsel for the petitioner has also relied upon observations in case of Desh Bandhu Gupta Vs.
N.L. Anand & Rajinder Singh, reported in (1994) 1 SCC 131. Relevant para no. 7 & 9 read thus:
“7. Mr. Gupta contended that under Order 21 Rule 54 the appellant had not been served with the order of attachment. Either the appellant or the inmates of his house were always available at his residence. It was said to have been affixed at the site and his enquiries revealed that no such affixation at the site was made. It is an admitted position that no personal service on the appellant was effected but nonetheless evidence discloses that it was affixed at the site. The purpose of attachment under Rule 54 is to make the judgment-debtor aware that attachment has been effected and that he should not make any transfer or encumber the property thereafter. It is in the interest of the decree-holder to have the notice of attachment served personally on the judgment-debtor. Nevertheless the sale is not void, though the omission to serve the copy of the order of attachment is an irregularity. Since no encumbrance thereafter was created on the attached property, non-service of the copy of the order of attachment on the judgment-debtor does not render the sale invalid.
9. However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing Court. We have already noted the order of the court to conduct the sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in court shall ascertain the compliance of the prerequisites contemplated under Rule 17 and on finding the application in order. It should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein. If a notice was served on the judgment-debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the court, under Rule 23 the court “shall order the decree to be executed”. If an objection is raised to the execution of the decree, by operation of sub- rule(2) thereof, “the court shall consider such objections and make such order as it thinks fit”. Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting the judgment-debtor from transferring or creating encumbrances on the property. Under Rule 64 the court may order sale of the said property. Under Rule 6(2) proclamation of sale by public auction shall be drawn up in the language of the court and it should be done after notice to the decree-holder and the judgment-debtor and should state “the time and place of sale” and “specify as fairly and accurately as possible” the details specified in clauses (a) to (d) of sub-rule (2) thereof. The Civil Rules of Practice in Part L in the Chapter 12 framed by the High Court of Delhi 'Sale of Property and Delivery to the Purchaser' Rule 2 provides that whenever a court makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a convenient date not being distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders. In Rule 4 captioned 'Settlement of Proclamation of Sale Estimate of Value' it is stated that only the day so fixed, the court shall, after perusing the documents, if any, and the report referred to in the preceding paragraph, after examining the decree-holder and judgment-debtor, if present, and after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66(2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceeding sand the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give at proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and got published in the manner prescribed by Rule 67. The court should authorize its officers to conduct the sale. Under Rule 68 the sale should be conducted at “the place and time” specified or the time may be modified with the consent in writing of the judgment-debtor. The proclamation should include the estimate, if any, given by either judgment-debtor or decree-holder or both the parties. Service of notice on judgment-debtor under Order 21 Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. Judgment-debtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratan this Court, after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2) (e) make it abundantly clear that the court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certain not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation,which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66(2) (e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e. the value of the property, that is, after all, the whole object of Order 21, Rule 66(2) (e), CPC. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued the property, and it does not apear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully be stated succinctly sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the court that the details enumerated in sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and is given opportunity in the settlement of the value of the property. The absence of notice causes irremedial injury to the judgment-debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment-debtor disables him to offer his estimate of the value who better knows its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment-debtor or the decree-holder. A sale made, therefore, without notice to the judgment-debtor is a nullity since it divests the judgment-debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutory that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to officer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopala Ayyar v. Ramachandra Ayyar the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.”
(Emphasis is supplied)
24. Learned counsel for the petitioner has also relied upon decisions reported in following citations in support of his contention:-
1. In case of Satyanarain Bajoria And Another v. Ramnarain Tibrewal And Another, reported in (1993) 4 SCC 414.
2. In case of M/s Sir Shadi Lal Sugar And General Mills Ltd And Another V. Commissioner of Income Tax, Delhi, reported in (1987) 4 SCC 722.
3. In case of Gajadhar Prasad And Others Vs. Babu Bhakta Ratan And Others, reported in (1973) 2 SCC 629.
25. Thus from the foregoing discussions and the law laid down by the Apex Court there remains no manner of doubt in holding that the notice to the judgment-debtor before effecting the sale by way of auction in execution proceeding is absolutely essential and the sale would stand vitiated if the same is effected without notice to the judgment-debtor. The Court is unable to accept the submissions canvassed on behalf of respondent/auction purchaser that affixation of the order under Rule 54 is sufficient notice. As stated herein above it is reiterated at the cost of repetition that the order made under Rule 54 (Exhibit-10) did not contain any such notice as envisaged under Rule 66 (2) and therefore in my view it is sufficient to say that there was no notice and the valuable right of the judgment-debtor was affected.
26. The Court is also unable to accept the submission canvassed on behalf of respondent auction purchaser that the judgment-debtor could not have challenged the sale and prayed for setting it aside after missing number of opportunities for bringing an application in this behalf. The act of judgment-debtor of bringing action against the sale is time barred and vitiated on account of delay and latches then also it is not permissible in law on account of the conclusion of this proceedings in form of issuance of sale certificates as envisaged under Rule 94 of Order 21. Learned counsel for respondent auction purchaser has placed heavy reliance upon provision of Rule 94 in support of his submission and submitted that the conclusion of the sale and issuance of certificate should act an insurmountable impediment in the way of the judgment debtor in seeking relief for quashing and setting aside the sale. The Court is of the considered view that this point needs no elaborate discussion as the decisions cited herein above in respect of lack of notice are containing sufficiently clear ratio that the auction sale in the auction procedure when is vitiated and the glaring illegality in challenging to the sale on ground of it being suffering from serious infirmities and illegalities, cannot be frustrated on account of any time limit as the said infirmities is going to the root of the very proceedings.
27. Learned counsel for respondent / auction purchaser has further contended that the provision of Rule 90 and explanation there under would indicate that the defect in attachment of the property sold or absence of order would not be itself a ground for setting aside the sale under this rule. The Court is the considered view that said explanation which is sought to be relied upon is not of any avail to the respondents for saving the sale in as much as the attachment of the property cannot be said to be defective only on this ground, rather there appears to be a blatant violation of provision of Section 66 & 67 which in my view vitiate the sale by auction proceeding itself.
28. The counsel's submission qua mere argument of fraud is not sufficient unless it is proved and the Court has to record its satisfaction that on account of such fraud substantial injury is resulted on account of such irregularity, and the counsel for respondent / auction purchaser has heavily relied upon the estimation of the value of the property and the stage at which properties were sold. To support his contention that there exists no ground for justifying plea for substantial injury on account of so called irregularities in the sale proceeding learned counsel invited Court's attention to valuer's report and pointed out there from that the property in the nature of flats was not fully constructed property so as to avail higher price than what it has fetched. The properties were actually under construction property and therefore valuer also clearly opined that on account of the property in form of flats being under construction property and subject matter of litigation which may fetch nowhere between Rs.73.00 lacks and 78 lakhs and odd and when respondent nos. 7,8 and 9 have purchased the property on bidding highest at Rs.78,25,251/- there is no question of causing any injury much less substantial injury as envisaged under Rule 92. The Court is of the view that the sale proclamation did not contain any valuation or establishment of value of the property and when there exists no justification for not issuing any notice to the judgment-debtor, then, there is no question of any insurmountable impediment in way of the Receivers in complying with the provisions of law. The Court is inclined to set aside the Sale only on account of lack of notice to the judgment debtor and lack of such notice cannot be overlooked on account of finality of sale or issuance of sale certificate as it goes into the root of the sale procedure.
29. The Court has come to the conclusion that the auction of both the properties were vitiated on account of lack of notice to the judgment-debtor, and that being an error fatal to the validity of auction sale, in light of the decision of the Supreme Court the auction sale cannot be permitted to remain and they have to be quashed. Other submissions of the counsel for the auction purchasers therefore need not be elaborately dealt with, but suffice it to say that the Court is quashing the auction sale on ground of non-compliance with the mandatory provision of notice to the judgment- debtor.
30. Before parting with this judgment, this Court is of the considered view that the Exhibit-10 proforma of warrant is not a format-24 as prescribed under Code of Civil Procedure, 1908 and therefore, this aspect is to be brought to the notice of all the concerned Courts in the State that whenever the attachment order in execution is issued it should be in Format-24 as prescribed under Civil Procedure Code, 1908, and, therefore, the office is directed to bring this aspect to the notice of the Hon’ble The Chief Justice, so that appropriate direction could issued to all the Courts in the State that hereafter they shall use the Format as prescribed under Format No.24 while issuing attachment order under Order-21 Rule-54
31. In view of the aforesaid discussions, the order of executing court in my view cannot be sustained and therefore the same is hereby quashed and set aside. The Executing Court is hereby directed to revive the proceedings form the stage of Order-21 Rule 54 stage and follow the provisions of Order 21 in total compliance so that appropriate orders could be made and the decree could be satisfied. The sale Certificates are also quashed The Sale deeds therefore would be of no avail and the amount so deposited be refunded to the auction purchasers. With this observation rule is made absolute to the aforesaid extent. However, there shall be no order as to costs.
32. At this stage learned counsel for Respondent nos. 7, 8, 9 and 10 prays for staying this order so as to take out appropriate remedy for challenging this order. Said request is opposed by learned counsel for the petitioner and it was submitted that even otherwise also when the Court has ordered revival of stage from Rule 54 Order 21 then sufficient time would be otherwise also available to the respondents.
33. This Court is of the view that the objections raised on behalf of the petitioner is required to be overruled, as sufficient time should be granted to the respondents for challenging this order. Hence staying this judgment & order will come into force only after a period of 30 days from date of the receipt of the Certified Copy of the Order. All parties to maintain status-quo qua the properties and no party should take advantage of any documents pertaining to the properties in any manner till this order becomes effective. Registry is directed to return the record & proceedings to the Court below immediately.
[ S.R. BRAHMBHATT, J ] /vgn