LexM/S. MAHAKAL AUTOMOBILES & ANR. versus KISHAN SWAROOP SHARMA
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[2008] 5 S.C.R. 1020 A MIS. MAHAKAL AUTOMOBILES & ANR. II. KISHAN SWAROOP SHARMA (Civil Appeal No. 2598 of 2005) B APRIL 2, 2008 (DR. ARIJIT PASAYAT AND 5.H. KAPADIA, JJ.) ' J._ Code of Civil Procedure, 1908: c Order 21, rules 54(1A) and 66(2) - Execution of decree - Attachment of immovable property and proclamation of sale by public auction - HELD: At each stage of execution of decree, when a property is sold, it is mandatory that notice shall be served upon the person whose property is being sold and sale of any property without notice to its owner is a nullity, D and all actions pursuant thereto are liable to be quashed - Under Order 21 Rule 66(2) service of the notice has to be ~ personally effected on judgment-debtor- On facts, There was no proclamation of sale as per the statutory provisions of M.P. Civil Court Rules, 1961 read with Order 21 Rule 66 -Also no· E notice was served upon judgment-debtor under Order 21 Rule 54 (1-A) - High Court erred in confirming auction sale - Judgment-debtor directed to make payment as specified in the judgment. F The respondent-plaintiff sold the suit property to the appellant-defendants. Since the latter could make only a part payment, the respondent filed a suit for recovery. On > defendants' admission, the trial court passed the judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908. A preliminary decree was drawn up. In G execution proceedings, the appellant-judgment debtors filed IAs resisting the attachment and auction sale of the property on the ground, inter alia, that no notice was given to them under Order 21, Rules 54 and 66(2). Ultimately, the High Court dismissed the IAs, upholding confirmation H 1020 1022 SUPREME COURT REPORTS [200815 S.C.R. ..... A [1026-C-D; 1029-E-G] Deshbandhu Gupta v. N. L. Anand @ Rajinder Singh 1994(1) SCC 131; and Mis. Shalimar Cinema v. Bhasin Film Corporation and Another 1987(4) sec 717 - relied on. B 2. The appellant has deposited Rs.14,38,893/- and Rs.4,46,9261- purportedly for satisfaction of the execution t. court. The appellant shall further deposit a sum of Rs.15,00,000/~. Respondent no.1 shall be entitled to withdraw the amount deposited in the bank with accrued c interest. The appellant shall be responsible for payment of and shall pay the property tax of the suit property from the date of execution of sale deed i.e. 5.12.1986 till date. On payment of the amounts, the title to the property described in the registered sale deed will vest free of all D encumbrances on the appellant. [para 11] [1028-G-H; 1029-A-B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2598 of 2005 From the final Judgment and Order dated 28.04.2004 of E the High Court of Madhya Pradesh, Indore Bench in M.A. No. 52 .of 2004 lndu Malhotra Ashok Kherkat and Kunal Tondon for the Appellants. F S.K. Dubey, Sunil Goyal, Dr. Sumant Bhardwaj, Shamba Dutta and Praveen Chaturvedi for the Respondent. The Judgment of the Court was delivered by ). DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to G the judgment of learned Single Judge of the Madhya Pradesh High Court, Indore Bench. 2. Background facts in a nutshell are as follows: Respondent had sold 7200 sq.ft. land with some construction on 15/11 /1986 for Rs.7 .20 lacs to the JDs/ H appellants and was paid only Rs.1.60 lacs. He had agreed to .. I M/S. MAHAKALAUTOMOBILES &ANR. v. KISHAN 1023 SWAROOP SHARMA [DR. ARIJIT PASAYAT, J.] accept the remaining amount of Rs.5.60 lacs. in 4 installments A · in 3 years with interest @ 1.50% per month. A charge was created on this property. Respondent had later filed a Civil Suit No. 13-A/89 (New No. 6-A/1991) for recovery of amount of Rs.6,31,750/- by sale of such property. JDs/appellants in their written statements had admitted 8 . liability to pay Rs.5 lacs as principal and Rs.65,000/- as interest and pendentelite interest@ 1% per month. They disputed that Babula I was the partner of M/s Mahakal Automobiles. Thus, the ADJ on 24/9/1 991 gave a judgment and decree under Order XII Rule 6 of the Code, relevant portion of which reads follows: · C "As a result application of plaintiff is partly allowed and it · is hereby ordered that defendants Nos. I and 3 shall pay within 6 months from today Rs.5,65,00/- and iriteresr@1% per month on Rs.5 lacs from the date of institution of suit D i.e. 16/6/1989, otherwise the plaintiff would be entitled to get a final decre
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