Or.21, Rule 64,66 and Or.21, rule 90 of C.P.C -Even though a portion of the property is enough to satisfy the decree claim, No sale should be set aside due to dereliction, negligence & carelessness of Jdr, not only in contesting the case but also in complaining the orders of the Court - Exparte Decree - E.P.Claim Rs.3,55,732/- -Sale of agricultural land of Jdr -Sale Held- Auction purchaser paid sale price of Rs.13 lakhs and odd - Sale set aside by High court - Apex court granted time to pay auction purchaser a sum of Rs.15 lakhs and odd including compensation- Jdr failed to pay the same - Jdr failed to pay the E.P. claim also to the Dhr-2015 S.C.(2014) MSK Law Reports 1


The High Court  by  the  impugned
judgment dated 13th December, 2013, allowed the petition and set  aside  the
sale and directed the Executing Court to take appropriate  action  for  sale
of the property in question in accordance with the provisions  of  Rules  64
and 66 of Order XXI of the CPC.   It was also directed that respondent  no.1
i.e. the petitioner before the High Court should deposit  the  amount  which
had been paid to the decree holder i.e. the present  respondent  no.2.   The
amount deposited by the auction purchaser was directed  to  be  refunded  to
him by the executing Court and it was also directed that respondent  no.1  –
the judgment debtor should  be  put  into  possession  of  the  property  in
question.


 Apex court held that  

we are of  the  view
that the judgment delivered by the High Court is not  just  and  proper  for
the reason that respondent no.1- debtor had never shown his fairness in  the
entire proceedings.  Though an ex-parte decree was passed  against  him,  he
never made sincere efforts to get the decree set aside.  Even  at  the  time
when the sale proclamation had been issued, he did not raise  any  objection
to the effect that even by sale of lesser area  of  his  land,  the  decree-
holder would get his dues.  Only after the auction sale had been  concluded,
he had initiated different  proceedings  before  different  Courts,  perhaps
only with an  intention  to  see  that  the  property  in  question  is  not
transferred to the auction purchaser.

In our opinion, respondent no.1 ought to have raised his objection  at
the stage when the property in question was to be sold by  an  auction.   He
did not do so.  Subsequently, after the property was sold  at  the  auction,
he approached the High Court, though a proper remedy for him was to file  an
application under Rule 90 of Order XXI of the CPC.    When  the  High  Court
had directed him to  file  appropriate  proceedings  before  an  appropriate
forum, he did so, but there also he was so  careless  that  the  proceedings
had been concluded against him on account of defaults committed by him.

The aforestated circumstances very well show  that  the  intention  of
the principal debtor is to avoid making payment to the  decree  holder.   If
the judgment delivered by the High Court is upheld, the  entire  proceedings
with regard to execution will commence de novo and one does not know  as  to
when the proceedings would be concluded and the decree holder would get  the
decretal amount.  By this time, the decretal amount, which was Rs.3,55,732/-
 somewhere in 2006, must have increased substantially and it  would  not  be
just and proper to keep the decree holder waiting still more.

 For the aforestated reasons, in the interest of justice, we feel  that
the impugned judgment delivered by the High Court  deserves  to  be  quashed
and set aside.  If the  auction  purchaser  is  not  in  possession  of  the
property in question or if there is obstruction  by  respondent  no.1,  such
obstruction shall be removed and the appellant shall be  put  in  possession
of the property in question.

 For the aforestated reasons, the appeal  is  allowed.  - 2015 S.C.(2014) MSK Law Reports 1

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