JUDGMENT D.P. Singh, J.
1. Heard Sri S. N. Verma, learned senior counsel assisted by Sri Sharad Malviya for the petitioner and Sri Navin Sinha, learned senior counsel assisted by Sri P. K. Sinha for the respondents.
2. This writ petition is directed against an order dated 1.9.1987 allowing the objections filed by the contesting respondents and setting aside the order of the trial court dated 13.3.1987 whereby it had rejected the aforesaid objections in execution proceedings.
3. Relevant facts are that the respondent No. 3 filed a money Suit No. 43 of 1987 on 9.2.1978 for recovery of the price of some goods.
Along with the suit an application for attachment before judgment was also filed and the disputed plot was attached on the same day. On 16.8.1978 the suit was decreed ex parte and the same was put into execution on 15.1.1982 in execution case No. 1 of 1982.
4. The learned counsel for the petitioner has firstly urged that the revisional court ought to have adjourned the matter on the adjournment application filed by the petitioner, and in any event should not have decided the revision on merits and at least another date could have been fixed.
5. From the record, it is evident that the revision was fixed for hearing on 25.5.1987. It was adjourned to 11.8.1987 on the request of the petitioner to enable him to engage a counsel. On 11.8.1987 the same prayer was again made that he was yet to engage counsel and as such yet again the case was adjourned to 31.8.1987, however, it was made clear that the matter will not be adjourned on that date. On 31.8.1987 an application for adjournment was again moved but on the ground of the illness of the petitioner. It would be relevant to note that the application was presented by the nephew of the petitioner as a pairokar and he was present on 31.8.1987. It is evident that no counsel was engaged by the petitioner. This adjournment application was strongly opposed by the contesting-respondent by filing a counter-affidavit stating that the petitioner who was a doctor was not, in fact, ill but was attending to his patient in his clinic. Normally, it is true that adjournment on such personal ground should be granted, but where the Court, as in the present case, finds that the adjournment sought is mala fide and only to delay the proceedings, it does not only have jurisdiction, but a duty, to refuse such adjournment. The Court, in my view, rightly rejected the adjournment application. It is evident that the arguments were heard on 31.8.1987 in the presence of the nephew-cum-pairokar of the petitioner. There is absolutely no reason shown either in the adjournment application or even in this writ petition as to why no lawyer was engaged by the petitioner to appear before the Court. There was no reason not to engage a lawyer to appear. After the arguments were heard, the matter was fixed for the next date for delivery of order, there is nothing on record to show whether any lawyer was engaged to appear even on the next date when the order was to be pronounced. The Apex Court in the case of State of Jammu and Kashmir v. Enquiry Officer, 1999 (1) AWC 397 (SC) : JT 1998 (7) SC 616, has held that if the advocate is present and refuses to argue, the Court can dismiss the case for non-prosecution, but if none appeared and the adjournment was refused, Court would be well within its jurisdiction to decide the case on merits. In my opinion, first argument of the learned counsel for the petitioner has no force and is thus rejected.
6. The next contention of the learned counsel for the petitioner is that the objection of the judgment debtor was not maintainable under Section 47 read with Section 151, C.P.C. and, in fact, objection was referable to Order XXI, Rule 90, and since the pre-conditions, as existing in the U. P. Amendment was not satisfied and so it could not have been taken note of. It has further been urged that once the judgment debtor had been declared an insolvent, he had no locus to file objection against the auction. In support of his contention he has relied upon the ratio of the Apex Court rendered in the case of S. A. Sunderarajan v. A.P.V, Rajendran, AIR 1981 SC 693 and Janak Raj v. Gurdial Singh and Anr., AIR 1967 SC 608.
7. In Sunderajan's case (supra) the question for consideration before Apex Court was as to whether any objection relating to deficiencies in drawing sale proclamation etc. was referable to Order XXI, Rule 90 or Section 47, C.P.C. The Apex Court upholding the decision of the Madras High Court, held that where challenge is in relation to irregularities in auction sale, the objection was maintainable under Order XXI, Rule 90 and not under Section 47, C.P.C. In Janak Raj's case (supra), the Supreme Court was examining the question whether a sale of immovable property in execution of an ex parte money decree could be confirmed, even though, the said decree was set aside after the sale. The Court held that even such a sale has to be confirmed.
8. Further additional facts are required to be considered before the aforesaid argument can be considered. As mentioned hereinabove, an application for attachment under Order XXXVIII was moved along with the suit and the Court passed an even dated order attaching the disputed property. It appears that the judgment debtor had made an application before the Insolvency Court at the Calcutta High Court under the Presidency Towns Insolvency Act and the Calcutta High Court vide its order dated 21.2.1978 had adjudged the judgment debtor as insolvent. It is thereafter the petitioner decree holder put the decree into execution on 15.1.1982 wherein the terms of sale was settled on 16.12.1983. It appears that objections on behalf of the official receiver was filed before the executing court which was rejected on 27.3.1984 and the auction sale was held on 22.1.1985 in the name of the petitioner. Thereafter, the insolvent judgment debtor filed his objection on 8.2.1985 allegedly under Section 47 read with Section 151, C.P.C. and Section 17 of Presidency Towns Insolvency Act which was rejected by the executing court which led to the filing of the revision which has been allowed.
9. Section 17 of the Presidency Towns Insolvency Act mandates that no suit or "any proceedings" can be initiated after the adjudicatory order is passed. The term "any proceedings" are of wide import and have a very sacrosanct object behind it. By its very nature, it would also include an execution proceedings. Section 17 (supra) clearly states that if any proceedings are initiated, the same would be void or non-est.
10. It is apparent that even initiation of execution proceedings would be covered by Section 17 of the Presidency Towns Insolvency Act. The objection which was filed before the Court do not relate to any irregularity either in the drawing of the proclamation or in the conduct of the auction sale. The objection went to the root of the matter and the entire proceedings itself were null and void and hit by the injunctive clause of Section 17. In the said two decisions of the Apex Court in the case of S. A. Sunderarajan v. A.P.V. Rajendran, AIR 1981 SC 693 and Janak Raj v. Gurdial Singh, AIR 1967 SC 608 (supra), it has not been held that where the proceedings itself were void, powers under Section 47, C.P.C. could not be invoked. Therefore, in my opinion, both the aforesaid decisions do not apply to the present set of facts. The objection which was filed on behalf of the contesting respondent cannot be referred to Order XXI, Rule 90 and was only referable to Section 47, C.P.C. Thus, the said objection was maintainable,
11. In support of his other contention, learned counsel for the petitioner has relied upon ratio laid down in several cases. Firstly, he has relied upon the ratio laid down in Sakhawat Ali v. Radha Mohan, AIR 1919 All 284. In Sakhawat Alt's case (supra), the receiver appointed by the Insolvency Court sold the estate under the direction of the Insolvency Court and the insolvent approached the Insolvency Court claiming irregularities in the sale. In these circumstances, the Court held that the insolvent has no right to maintain objections. Secondly, he has relied upon Sayad Daud v. Maulana Mohomed, AIR 1926 Bom 366, in which case a Division Bench of the Bombay High Court held that once an order of adjudication of the insolvency Court is passed, the insolvent cannot have any cause of action to maintain a suit in his own name. Thirdly, he has relied upon a case of Kripa Nath v. Ganga Prasad, AIR 1962 All 256, wherein the Court has come to the conclusion that if an adjudication order was subsisting, the property vests in the Court or the receiver and the insolvent is divested of his rights with regard to the property under adjudication. Lastly, he has relied upon the case of Abu Ubaida v. Jamil Hasan. AIR 1948 All 49, in which case an adjudication order was made in 1935 and when another order was made 1936, which was assumed by all that the order of the adjudication had been annulled and as such a decree holder in execution was able to receive the money from the official receiver. Subsequently, the High Court held that the adjudication order had never been annulled and as such, in these peculiar facts, it was held that the insolvent ought to have approached the receiver instead of approaching insolvency Court for refund of the amount which was released without obtaining leave of the Court.
12. It should be borne in mind that before initiating the execution proceedings, no permission was sought or granted by the insolvency Court.
13. The ratio laid down in all the aforesaid cases cannot be doubted. In the present case, it is not denied that on the date when the execution was put into motion on 15.1.1982, the order of adjudication was in vogue, as such, all proceedings were void and non-est in the eyes of law. The judgment debtor or for that matter any other person, including the receiver could inform the Court that the proceedings were void. There was no question in such situation as to whether the person had any locus or not. The contesting respondent may have described the application as one under Section 47, etc., but mere mentioning of the sections would not be determinative. In my view, the , judgment debtor, or for that matter any other person, could inform the Court that the entire proceedings were void. In none of the aforesaid cases, the Courts have held that the insolvent does not have a right to inform the executing court that the proceedings were void. It is evident from the Division Bench in Sayad Daud case (supra), that insolvent does not lose absolutely all interest in his property.
14. It is well settled that even when reasons given for a decision may not justify, it but, if the decision can be supported by other reasons which are on record, the writ court can refuse to exercise its discretion under Article 226 of the Constitution of India. In my view, there is no infirmity in the impugned order.
15. For the reasons given hereinabove, the writ petition falls and is dismissed, however, without any cost.