ORDER D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the petition may be disposed off under the Rules of the Court.
2. Heard counsel for the parties.
3. This writ petition is directed against a revisional order dated 9.2.1993 by which an order of the executing court setting aside the auction sale has been quashed.
4. A money suit No. 97 of 1978 was filed by one Smt. Usha Rani the decree holder against the petitioner judgment debtor which was decreed for a sum of Rs. 12,992.85. In its execution case No. 15 of 1980 a residential house of the judgment debtor was auctioned and sold on 31.3.1981 for a sum of Rs. 55,000/- in favour of respondent No. 1, the auction purchaser, who deposited 1/4th amount at the fall of the hammer and the remaining amount on 10.4.1982, Co-bidders of the auction purchaser filed objections dated 8.4.1982 before the court alleging that even though they were the highest bidders but their bid was not noted by the Amin illegally and they were still prepared to give a higher price than offered by the auction purchaser. The Executing Court vide order dated 17.4.1982 cancelled the auction sale and directed the decree holder to take steps for fresh auction. However, the judgment debtor paid the entire decreetal amount to decree holder on 17.4.1982 itself who moved an application for dismissing the execution in satisfaction of the decree. This application was allowed and the execution case was dismissed vide order dated 1.5.1982. The auction purchaser preferred a revision No. 110 of 1982 against the order dated 17.4.1982 on the ground that no notice to him was given before setting aside the sale.
5. After hearing the parties, the revision was allowed vide order dated 20.9.1986 and it was remanded to the Executing Court for giving notice to the auction purchaser before deciding the validity of the sale. The court further permitted the judgment debtor to file objections with regard to the validity and irregularity of the auction sale whereafter the court may pass order either confirming or cancelling the sale. Against the order of remand the judgment debtor preferred writ petition No. 19542 of 1986 which was dismissed in limine on 9.12.1986. In pursuance of the remand order, the petitioner preferred his objections against the sale which was registered as Misc. Case no. 182 of 1986. The Executing Court allowed the objections vide order dated 3.12.1991 holding that the auction proceedings were illegal as the mandatory provision of Order XXI, Rule 66 and Rule 110 has not been complied with and thus it again set aside the sale.
6. Aggrieved, the auction purchaser preferred a revision which has been allowed by the impugned order on the ground that the objection of the petitioner was barred by limitation and the objections under Section 47, CPC were not maintainable and no. objection under Order XXI, Rule 90 had been filed.
7. Learned Counsel for the petitioner has firstly urged that his objections have been filed in pursuance of the order-dated 20.9.1986 which order has been upheld by this Court and thus it was within time.
8. Under Order XXI, Rule 90 the limitation of filing the objection is 30 days. In the present case, the auction was held on 31.3.1982 but before expiry of the period of 30 days it was cancelled vide order dated 17.4.1982 and in fact the execution case itself was dismissed in full satisfaction of the decree vide order dated 1.5.1982. Further, the auction purchaser himself withdrew the bid money on 5.11.1982. Thus even before expiry of the period of limitation the sale was cancelled and the execution discharged which order has been set aside in revision which was upheld by this Court in the writ order dated 9.12.1986. Even before 9.12.1986, the petitioner had filed his objection in pursuance of the direction of the revisional court. Therefore, in my opinion, the objection of the petitioner is well within time.
9. It is then contended that though the objection of the petitioner was filed under the heading of Section 47, it could have been treated as an objection under Order XXI, Rule 90.
10. A perusal of the grounds taken in the objection purportedly under Section 47 read with Section 151, are attributable to Rule 90 of Order XXI. Nomenclature of the objection cannot be determinative of the substance of an application. If an application, in substance, can be justified under any provision, other than under which it is purportedly made, it cannot be rejected and has to be considered under the other provision. The revisional court was not justified in treating it under Section 47 or 151, but ought to have considered it under Rule 90.
11. However, learned Counsel for the auction purchaser has urged that once the order of the Executing Court dated 17.4.1982 had been set aside by the revisional court, his right and title related back to the date of sale. In support of his contention he has relied upon a judgment of the Apex Court in Janak Raj v. Gurdial Singh AIR 1967 SC 608. The ratio in Janak Raj is that if an auction sale takes place and subsequently the decree is set aside, it cannot be a ground to cancel the sale as the right of the auction purchaser relates back to the date of sale. But the ratio has no application to the facts of this case. Here in this case the sale had been cancelled at the behest of non-parties and the auction purchaser lifted his auction money from the court and the court exercised its inherent powers to cancel it.
12. That leaves us with the question, whether the court would be justified in remanding it for decision afresh?
13. The suit was filed in 1978, more than a quarter century ago. Execution was lodged in 1980, and now more than two score of years have passed. This writ was filed in 1993, more than a decade ago. Fortunately, both the contesting parties are amongst us, though quite old. Should the court let their heirs or successors see the fruitation of the cause in the next decade or so? An endeavour can be made to lay it to rest here, of course after balancing the equities. So, I have heard the parties on the merit of the executing court's order dated 3.12.1991.
14. In its order a finding of fact has been recorded that the result of the enquiry under Rule 66 of Order XXI and terms of sale was not recorded by the presiding Judge in violation of Rule 110. It has also held that publication of the proclamation was wanting and it has resulted in substantial injury to the judgment debtor as it did not fetch the market price. Neither the revisional Court has held the findings to be against the evidence on record, nor the auction purchaser has pleaded to that effect in the counter affidavit here. Assuming that the objection of the judgment debtor was not maintainable, the court has inherent right to examine whether there was sufficient notice etc. The Apex Court in Jank Raj's case (supra) has held in para 6 of the report as follows :
It is to be noted, however, that there may be cases in which apart from the provisions of Rule 89 to 91, the Court may refuse to confirm a sale, as, for instance, where a sale is held without giving notice to the judgment-debtor, or where the court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held. Leaving aside cases like these, a sale can only be set aside when an application under Rule 89 or Rule 90 or Rule 91 of Order XXI has been successfully made.
15. Therefore, examining it from this angle also, the order of the Executing Court setting aside the auction sale has to be affirmed. But the auction purchaser who had deposited the amount in court, which remained there for about seven months, should be compensated. Keeping in mind the amount deposited and the time elapsed, applying the 'reasonable guess' principle he would be entitled to Rs. 10,000/- lump sum.
16. Thus, for the reasons given herein-above, this petition succeeds and is allowed, the revisional order dated 9.2.1993 is set aside and order of the Executing Court dated 3.12.1991 is restored, subject to deposit of Rs. 10,000/- with Executing Court within two months from today, which would be payable to the auction purchaser forthwith. No order as to costs.