SATYANARAIN BAJORIA AND ANR. versus RAMNARAIN TIBREWAL AND ANR.

Citation: [1993] SUPP. 2 S.C.R. 225 · Decided: 08-09-1993 · Supreme Court of India · Bench: P.B. SAWANT

Judgment (excerpt)

SATYANARAIN BAJORIA AND ANR. 
A 
v. 
RAMNARAIN TIBREWAL AND ANR. 
SEPTEMBER 8, 1993 
( 
[P.B. SA\\'.ANT AND YOGESHWAR DAYAL, JJ.) 
B 
Code of Civil Procedure, 1908-0.21, Rules 90, 54, 22, 66, 81)-Execu-
tion of decree delayed for more than 2 yearl'--Auction sale for recovering 
decretal amount-Jugment-debtor claiming he had no knowledge of these 
proceedings-Held, where more than 2 years have elapsed, notice under 0.21 C 
Rule 22 mandatory-On facts, held, notices and process not served on judg-
ment-debtoi-Sale set aside. 
Limitation Act, 1963-Schedule 1, Article 127-f'eriod of limitation 60 
days-Application for setting aside sale on ground of iTTegularity and fraud 
made within 60 days-Held, not time- barred. 
D 
The judgment-debtor was granted a loan of Rs. 4,000. A decree for 
Rs. 8,256.05 was passed against him in 1964. He deposited Rs. 8,000 and 
Rs. 391.55 in November 1964 and on January 4, 1965 respectively, and 
thought he had satisfied the decree. On November 29, 1965, the decree-
E 
holder made an application claiming another Rs. 350 which was allowed, 
but his execution application was dismissed for default. He remained silent 
for about 3 years and filed a money execution case in 1968 in the executing 
court claiming another sum of Rs. 350 plus interest. In execution of this 
application, the judgment-debtor's property - land situated in the market 
- was sold in auction. The decree-holder himself purchased it for Rs. 1,500. F 
Before the expiry of the limitation period of 60 days, the executing court 
confirmed the sale, for non-filing of objections. 
Before the expiry of 60 days from the sale, the appellant-judgment-
debtor filed a petition for setting aside the sale on the ground of ir-
regularity and fraud. He alleged that he had no knowledge of the case, that G 
all the steps had been taken ex-parte, that no process had been served on 
him, that the decree had been satisfied, that all notices, summonses had 
been merely on paper without actual service. He also contended that the 
notice of sale in the local paper had shown incorrect name of court and 
number of the case with intent to misguide him. Further, the auction land H 
225 
226 
SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R. 
A 
was worth Rs. 6,000-7,000 whereas it was sold at Rs. 1,500. 
The decree-holder examined witnesses to show that notice had been 
served on the judgment-debtor. 
The executing court set aside the sale, holding that there was 
B material irregularity in publishing and serving notices, and that the land 
had been sold at a very low value resulting in material loss. 
c 
D 
On appeal, the lower appellate court reversed the order of the 
executing court. Though the question of limitation had not been raised 
before the executing court, the lower appellate court held that the applica-
tion under Order 21 Rule 90 CPC was barred by time. It relied on order 
sheets in the execution case to hold that notices had been served on the . 
judgment-debtor. 
Allowing the appeal, this Court 
HELD : 1. Under Article 127 of Schedule 1 of the Limitation Act, 
1963, the period of limitation is now 60 days. The application for setting 
aside the sale on the ground of irregularity and fraud was made within 60 
days, and was thus within time. [231-D, G] 
E 
2. The fresh execution proceedings were started more than 2 years 
after the date of the decree. Issuing of notice under Order 21 Rule 22 was 
mandatory. It is only after such notice, and failure of the judgment-debtor 
to pay the decretal amount as claimed that proceedings for attachment of 
property may be taken recourse to. [232-C, E, F] 
F 
3.1. The proceedings for setting aside the sale under Order 21 Rule 
90 of the Code were independent proceedings and the file of proceedings 
under Order 21 Rule 22 of the Code could not be referred to in such 
proceedings without actual proof of service. Without proof of service of 
notice in the proceedings, the lower appellate court could not go merely by 
G order sheets of the execution file. [232-B] 
3.2. It was erroneous on the part of the lower appellate court to refer 
to the order sheets of execution case for showing service on the judgment-
debtor as required under Order 21 Rule 22 of the Code. The lower 
appellate court was not right in presuming service on the judgment-debtor 
H on the ground that the order sheets dated 26.3.1971, 20.7.1971 and 
s. BAJORIA v. TIBREWAL 
227 
19.8.1971 of the execution case showed that notices under Order 21 R

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