JANAK RAJ versus GURDIAL SINGH AND ANR.

Citation: [1967] 2 S.C.R. 77 · Decided: 08-11-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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JANAK RAJ 
v. 
GURDIAL SINGH AND ANR. 
November 8, 1966 
lK. N. WANCHOO AND G. K. MITTER, JJ.J 
Code of 'civil Procedure (Act 5 of 1908), O.XXI. rr. 89-92-Ex parte 
money decree-Sale of property in execution-Decree set aside before 
confirmation-If sale could be confirmed. 
The appellant, a stranger to the suit, was the auction-purchaser of the 
judgment-debtor's immovable property in execution of an ex parte money 
decree. 
On the question whether he was entitled to a confirmation of the 
sale, under O.XXI, r. 92, Civil Procedure Code, notwithstanding the fact 
that after the holding of t:ie sale the ex parte decree was set aside. 
HELD : The 'sale should be confirmed. 
The law makes ample provision for the protectio1> of the interests of 
the jud~ment·-Oebtor, when bis property is sold in execution. He can file 
an application for setting aside the sale under the provisions of O.XXI, rr. 
89 and 90. Apart from exceptional cases when a court will refuse 
to 
confirm a sale because it was held without giving notice to the judgment-
debtor, or the court w:is misled in fixing the reserve price. or where there 
was no decree in existence at the time when the sale was held, ordinarily,. 
if a sale bad been validly held, an application for setting it aside can only 
be made under O.XXI, rr. 89 to 91. If no such application was made, or 
when such an application was made and disallowed, the court has no 
choice but to confirm the sale. [78 F-H; 79 H; 80 A-BJ 
Case law reviewed. 
OVIL APPELLATE JURISDICTION : Civil Appeal No. 1322(N) 
of 1966. 
Appeal from the judgment and order dated December 24, 
1965, of the Punjab High Court in L.P. Appeal No. 20 of 1965. 
The appellant appeared in person. 
D. D. Sharma and M. C. Bhatia, for respondent No. I. 
The Judgment of the Court was delivered by 
Mitter, J. This is an appeal from a judgment and order of 
the Punjab High Court dated December 24, 1965 on a certificate 
granted by the said court. 
The question involved in this appeal is, whet;1er a sale of 
immovable property in execution of a money decree ought to be 
confirmed when it is found that the ex parte decree which was 
put into execution has been set aside subsequently. 
The facts are simple. One Swaran Singh obtained an ex parte 
decree on February 27, 1961 against Gurdial Singh for Rs. 519/-. On 
an application to execute the decree, a warrant for the attachment 
78 
SUPllEMB OOUllT llBPOllTS 
[1967) 2 S.C.R. 
of a house belonging to the judgment-debtor was issued 0.1 May 10, 
1961. At the sale which took place, the appellant before us be-
came the highest bidder for Rs. 5,100/- on Deccmoer 16, 1961. 
On the 2nd of January 1962, the judgment-debtor made an appli-
cation to ha\•c the ex parte decree set aside. On January 20, 1962 
he filed an objection petition against the sale of the house on the 
ground that the house which was valued at Rs. 25,000/- had been. 
auctioned for Rs. 5,000/- only and that th~ sale had not been con-
ducted in a proper manner inasmuch as there was no due publica-
tion of it and the sale too was not held at the proper hour. By 
an order dated April 19, 1962, the executing court stayed the exe-
cution of the decree till the disposal of the application for setting 
aside the ex parte decree. 
On October 26, 1962 the ex parte de-
cree against the defendant-judgment-debtor was set aside. On 
November 3, 1962 the auction purchaser made an application for 
revival of the execution proceedings and for confirmation of the 
sale under O.XXl, r. 92 of the Code of Civil Procedure. On 
November 7, 1962 the judgment-debtor filed an objection thereto 
contending that the application for revival of execution proceedings 
was not maintainable after setting aside the ex parte decree and 
that the auction purchaser was in conspiracy and collusion with 
the decrcc-ho1der and as such not entitled to have the sale con-
firmed. 
It is to be noted here that the case of collusion was not 
substantiated. On August 31, 1963 the executing court over-ruled 
the objection of the judgment-debtor and made an order under 
O.XXl, r. 92 confirming the sale. This was affirmed by the first 
appellate court. On second appeal to a single Judge of the Punjab 
High Court, the auction purchaser lost the day. 
A~ appeal under 
cl. JO of the Letters Patent in the Punjab High Court met rhc same 
fate. 
Hence this appeal. 
Before referring to the various decisions cited at the Bar and 
noted in the judgment appea
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