In spite of sufficient service no one appeared on behalf of contesting respondents.
Heard Sri Arjun Singhal, learned counsel for the petitioner.
Respondent nos. 3 and 4, K.K. Maheshwari and Rukmani Sevak obtained a money decree against respondent nos. 5 and 6 Manoj Kumar Jaiswal and Bhagwan Das Mangal Das (a trade name). In execution of the decree a house and a shop belonging to the judgment debtor was sold through auction and was purchased by the petitioner on 4.2.1976 for Rs.1,44,000/-. Proceedings for challenging the auction were initiated by the judgement debtor. He also deposited the amount under order XXI rule 89 C.P.C. However, executing court/Civil Judge (S.D.), Azamgarh refused to grant benefit of the said rule to the judgment debtor through order dated 1.5.1976 which was confirmed by this court through order dated 19.11.1976. Thereafter, matter was carried to the Supreme Court in the form of Civil Appeal no.236 of 1977 which was disposed of on 14.11.1991 by the following direction:-
"Taking these factors into account we direct that the auction sale of the said properties shall be set aside on the appellants paying to respondent no.3 the auction purchaser a sum of Rs.1,44,800/- together with interest at the rate of 12% per annum from the date of deposit of the said amount till the date of payment. The said amount on calculation by the executing court be paid by the appellants within a period of four months failing which the appeal shall stand dismissed with no order as to costs. In calculating the amount payable by the appellants to respondent no.3 credit shall be given to the appellants for the sum deposited in court and interest earned thereon, if any. The execution court to calculate the actual amount payable by the appellants to respondent no.3 within four weeks of an application being made to the executing court for this purpose. The appeal is disposed of accordingly."
Complete copy of the judgment of the Supreme Court is Annexure 3 to the writ petition.
Thereafter, the executing court through order dated 28.08.1992 (Annexure-IV to the writ petition) directed its office to calculate the requisite amount to be deposited. The requisite amount was calculated by the office to be Rs.289747.60/-. The executing court through its order dated 29.09.1992 found the calculation to be correct and directed the judgment debtor to pay the same by 04.01.1993. It was accordingly deposited on 02.01.1993.
The sole point raised by the learned counsel for the petitioner and to be decided in this writ petition is as to whether the order dated 29.09.1992 and the deposit made on 02.01.1993 can be treated to be within the time frame fixed by and in accordance with the above order of the Supreme Court.
The executing court through order dated 08.01.1993 set aside the auction sale on the ground that complete deposit as required by the Supreme Court order had been made by 04.01.1993. The said order of the executing court has mainly been challenged through this writ petition after 9 years.
These orders were not promptly challenged. In para 16 of the writ petition it has been stated that the said orders were challenged by the petitioner by means of revisions before the respondent no.1 which were unfortunately dismissed. Neither the numbers of the revisons have been mentioned nor dates of decisions have been given nor copies of the judgments have been annexed. It appears that nothing was done thereafter. In para 17 of the writ petition a similar bald statement has been made that, thereafter, various applications and affidavits were filed to the effect that the aforesaid orders of the executing court were against the directions of the supreme Court given in its judgement dated 14.11.1991. However, neither any date is mentioned nor copy of any such application or affidavit has been annexed along with the writ petition. It appears that only at the end of 2001 when fresh proceedings for auction were initiated, petitioner started asserting that the amount deposited by the judgment debtor was beyond time schedule fixed by the Supreme Court. Thereafter, it appears that decree holder revived the old execution case (Execution Case No.1 of 1976) and sought auction of the same property again in execution of the decree. In the said case petitioner filed some application in 2001 stating therein that the deposit made on 02.01.1993 was beyond the time limit fixed by the Supreme Court. To the said application, objections were filed by the decree-holder stating therein that the auction purchaser had filed Civil Revision No.108 of 1994, which was dismissed on 11.04.2000 and the said judgment and order had not been challenged before the High Court and that two more similar applications filed by the petitioner auction purchaser had been dismissed on 06.01.2001. The objections of petitioner were rejected on 21.11.2001 by Civil Judge, Senior Division, Azamgarh. True copy of the said order is Annexure-II to the writ petition. Against the said order, revision was filed being Revision No.NIL of 2001, which was dismissed on 28.11.2001 by District Judge, Azamgarh. Thereafter, on 10.01.2002 executing court passed an order on the application of the judgment debtor postponing the sale and permitting the judgment debtor to deposit the decreetal amount in instalments. These three orders have also been challenged through this writ petition. As far as last order is concerned, it has got no concern with the petitioner. As far as orders dated 21.11.2001 and 28.11.2001 are concerned, there is absolutely no error in the said orders. After finalization of the matter at the earlier stage through orders of the executing court dated 28.08.1992, 29.09.1992 and 04.01.1993, the same question could not be raised again.
Apart from the fact that the writ petition is utterly beyond time, I do not find any error in the orders of the executing court dated 28.08.1992, 29.09.1992 and 04.01.1993 holding that the amount was deposited within the time schedule fixed by the Supreme Court. The subsequent orders of 21.11.2001 and 10.01.2002 passed by the executing court and dated 28.11.2001 passed by the revisonal court can not provide fresh limitation to the petitioner. As far as auction in favour of the petitioner is concerned it stood set aside in January 1993 and, thereafter, he has got no concern with the execution proceedings. The application was made before the executing court pursuant to Supreme Court order which was decided by it and within four months of the decision the amount was deposited. Whatever delay was caused in the executing court it was only and only on the basis of frivolous objections raised by the petitioner auction purchaser as mentioned by the executing court in its order dated 28.08.1992, Annexure 4 to the writ petition.
Accordingly, writ petition is dismissed on merit as well as on the ground that it is barred by grave latches.
Order Date :- 02.05.2011 vkg