This writ petition is directed against judgemnt and order dated 2.12.2005 passed by Additional District Judge/Special Judge, E.C. Act, Moradabad through which Misc. Appeal was allowed and order dated 2.8.1999 passed by Civil Judge/Judge Small Causes Court, Moradabad in execution case no.4 of 1993 was set aside. The executing court through order dated 2.8.1999 had rejected judgment debtor/respondent's application under Order XXI Rule 90, C.P.C. dated 19.2.1999 through which earlier order passed by the same court dated 19.12.1997 allowing amendment application, confirmation of sale dated 5.2.1999 and sale certificate dated 11.2.1999 were sought to be set aside. The executing court had reaffirmed the earlier order and auction sale through order dated 2.8.1999. Accordingly, the lower appellate court through impugned judgment and order dated 2.12.2005 set aside the said three orders also.
The petitioner who is a contractor claimed that an amount of Rs.3,87,780/- was due to him from the respondent Union of India through General Manager, Northern Railway. The matter was referred to the arbitrator. The arbitrator through award dated 18.01.1993 held that petitioner was entitled to Rs.2,85,525/-. The arbitrator had been appointed by Additional Civil Judge/Judge Small Cause Court, Moradabad in case no.17 of 1984. Thereafter the award of the arbitrator dated 18.1.1993 was accepted by the court and was made part of the decree through judgment and order dated 4.5.1993.
Thereafter petitioner filed execution case no. 4 of 1993 for execution of the decree dated 4.5.1993. Through the execution application realisation of the decreed amount was sought by selling movable property (ash) belonging to the respondent. The coal ash was auctioned in favour of the petitioner. The said auction was cancelled on 28.11.1997 on the application of petitioner himself. Thereafter instead of filing fresh execution application, petitioner got his earlier execution application which had been filed on 2.7.1993 amended and added the prayer that decree should be executed by sale of agricultural land comprised in khata plot no.1079 area 2.978 hectare (29780 sq.meter) belonging to the respondent. Amendment application was filed on 18.12.1997 copy of which is Annexure-4 to the writ petition. It is stated in para-7 of the writ petition that the amendment application was allowed by the Executing court by order dated 19.12.1997 however, copy of the said order has not been annexed alongwith the writ petition. The fact that execution application filed under Order 6 Rule 17 and Section 151 C.P.C. on 18.12.1997 was allowed on the same date or on the next date clearly proves that it was allowed without notice to or hearing the respondent. It has not been stated in the writ petition that copy of the amendment application was even served upon counsel for the respondents. From perusal of Annexure-5 which is copy of order sheet of 4 days, it is clear that amendment application bearing date 18.11.1997 was in fact filed on 19.12.1997 and allowed on the same date. In the order sheet of 18.2.1998 it is mentioned that the judgment debtor respondent had filed application seeking 15 days time for filing reply. However, it is not clear that the time was sought to file reply to what application. Sale proclamation under Order 21 Rule 66 C.P.C. was issued, copy of which is Annexure-7 to the writ petition at the end of which the date is missing. After the word date there is blank space. Thereafter the word month is mentioned followed by blank space and thereafter year 199 is mentioned the last digit is missing. Accordingly it cannot be ascertained from Annexure-7 that on what date it was issued. However, at the top of Annexure-7 it is mentioned that date of munadi is 23.7.1998 and date of auction 27.8.1998 and date of report 31.8.1998 and it is titled as information of sale under Order 21 Rule 66 C.P.C.. It is mentioned in para-11 of the writ petition that on 11.8.1998 petitioner filed an application under Order 21 Rule 72 C.P.C. seeking permission to bid which was granted on the same date. Thereafter in para-12 it is mentioned that on 27.8.1998 public auction of the aforesaid land was held and petitioner's bid was highest of Rs.2,50,000/- which was accepted. In-fact apart from petitioner there was no other bidder. The court confirmed the sale on 5.2.1999 and issued sale certificate to the petitioner on 11.2.1999. Thereafter on 19.2.1999 respondent filed application under Order 21 Rule 90 C.P.C. read with Section 151 for setting aside the sale, confirmation of sale and sale certificate. Petitioner filed objections on 16.4.1999 which are Annexure-12 to the writ petition. The said application was rejected on 2.8.1999. In the application under Order 21 Rule 90 C.P.C. recall of order dated 19.12.1997 through which amendment in the execution application was allowed was also sought.
Even if it is assumed that execution application could be permitted to be amended by changing the manner in which assistance of the court was sought (from sale of movable property to sale of immovable property) still after amendment it would become an altogether new execution application and amendment application having been filed after two years from the decree notice to the judgment debtor was utmost essential in view of Order XXI Rule 22, C.P.C. In this regard reference may be made to the following authorities:
(i) Raghunath Das Vs. Sunder dAs Khetri, AIR 1914 PC 129
(ii) Satya Narain Pachauriya Vs. Ram Narain Dibrewal, AIR 1994 SC 1583 In the Supreme Court authority, it has further been held that if in the order sheet it is shown that notice was served under Order XXI Rule 22, C.P.C. still it is not a proof of service and actual proof of service of notice is necessary. The Executing Court merely on the basis of endorsement of decree-holder's counsel on the margin of the application to the effect that judgment debtor's counsel had refused to accept the copy of the application held that service was sufficient. Even the name of the counsel, who refused to accept the copy, is not mentioned. Moreover substitution application as originally filed had exhausted hence even if it was proved that the counsel for judgment debtor refused to accept notice (which itself is not proved), notice ought to have been issued to the judgment debtor respondent which was never done. There is no finding of the executing court that attachment order under Order XXI Rule 54, C.P.C. was actually served upon the judgment debtor. Similarly no notice was served upon the decree holder before drawing upon the proclamation of the sale as required by Order XXI Rule 66(2), C.P.C.
The entire proceedings of sale were conducted secretly and in a sham manner. There is nothing on record to suggest that any effort was made to let any other person know about the auction sale and its date rather all efforts were made by the decree-holder and the Amin to keep the said affair extremely secret. It is clear that no public auction worth its name took place. The sale of immovable property in execution is to be made by public auction. There was absolutely no publicity in the instant case.
Accordingly, not only the auction sale its confirmation and issuance of sale certificate was illegal, it was utterly void. The application filed by the judgment debtor could be treated to be application under Section 47, C.P.C. also.
I do not therefore find least error in the order of the lower appellate court setting aside the orders of the executing court. Writ Petition is dismissed.
Order Date :- 22.11.2012 RS