LexLAL CHAND versus VIIITH ADDL. DISTRICT JUDGE AND ORS.
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A LAL CHAND v. VIIITH ADDL. DISTRICT JUDGE AND ORS. FEBRUARY 21, 1997 B [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.] Code of Civil Procedure, 1908 : Or. XX/, Rules, 72 & 9o-Execution of decree-Auction sale-Decree- C holder taking part in auction without pennission of Court-Held, decree- holder has no right to bid in the auction without obtaining prior pennission of the Court. Or. XXI, Rules 66, 67 and 9o-Execution of decree-Auction D sale-Conducted without proper notice and publicity-Held, procedure adopted caused great prejudice to the interest of judgment-debtor. E Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, (1994] 1 SCC. 131, relied Oil. Or, XXI. Rules 64 and 90-Execution of decree arising out of an agreement of sale of 43 decimal of land and decretal amount being Rs. 10,00(}-Land admeasuring 1 acre 52 decimals put to auction-Land pur- chased by decree holder, without pennission of court, for Rs. 12,000 Held, the decree-holder had over-reached his original agreement which he failed in the F suit itself by participating and getting sale in his favour. There is no attempt made for sale of a reasonable portion of the property for realisation of the decree debt-Sale of property conducted by executing court is clearly il- legal-However the appellant would pay the decretal amount, interest on principal earnest amount @ 12% per annum as well as impounding fee @ G 5% on sale amount of Rs. 12,000. Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, [1994] 1 SCC 131; Ambati Narasayya v. M. Subba Rao, (1989) Supp. 2 693 and Takaseela Pedda Subba Reddy, v. Pujari Padmavathamnta, [1977] 3 SCC 337, relied H on. 346 - - -- - LAL CHAND v. VIIITII ADDL. DISTI. JUDGE 347 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1727 of A 1997. - From the Judgment and Order dated 9.11.95 of the Allahabad High - Court in W.P. No. 2680 of 1989. Pramod Swarup, T.N. Singh and B.M. Sharma for the Appellant. B M.S. Ganesh, Sunil Kr. Singh and Anil Shrivastav for the Respon- dents. The following Order of the Court was delivered : Leave granted. We have heard learned counsel on both sides. This appeal by special leave arises· from the judgment of the High Court of Allahabad, made on November 9, 1995 in Civil Miscellaneous Writ Petition No. 2680/89. The admitted position is that the plaintiff-respondent had entered into an agreement with the appellant to purchase 43 decimals of land in plot No. 389/2 situated in Umraha, District Varanasi for a sum of Rs. 6625. A sum of Rs. 2,000 was paid as earnest amount while the balance amount c D had already been paid in the form of loan. The respondent filed the suit E seeking specific performance of the agreement, which relief ultimately was refused; but a decree for refund of the earnest money was granted. Since the amount was not paid, the respondent had brought the properties of the appellant, to the extent of one acre, 52-1/2 decimals to sale. The same came to be questioned by filing of an objection under Order XXI, Rule 90, CPC which was dismissed by the court below and upheld by the High Court. F Thus, this appeal by special leave. Two questions have arisen in this case, namely, whether the auction was properly conducted by the executing court and whether the respon- dent -decree holder was entitled to participate in the auction to bid and had sale confirmed in that behalf. It is not in dispute that the land, viz., G plot Nos. 24 and 25 of admeasuring 1 acre 19-1/2 decimals and plot No. 50-A admeasuring 33 decimals totalling 1 acre 52-1/2 decimals was brought to sale to realise the decretal amount of Rs. 10,921-50. The court fixed the valuation at Rs. 11,000. On a sale conducted by Amin of the court, the bid was knocked down on April 30, 1983 in favour of the respondent-decree H 348 . SUPREME COURT REPORTS [1997] 2 S.C.R A holder for a sum of Rs. 12,000. As stated earlier, the question has arisen whether the sale conducted in execution of the decree is valid in law? Order XXI, Rule 72, CPC envisage as under : B c D "72. Decree-holder not to bid for or buy property without pennission - (1) No. holder of a decree in execution of which Property is sold shall, without the express permission of the court, bid for or purchase the property. Where decree-holder purchases,· amount of decree may be taken as payment -- (2) Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subjec
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