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Ram Raj Bhar v/s Most. Illaichi Devi

    C.R. 1124 of 2005

    Decided On, 31 January 2008

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S. N. HUSSAIN

    For the Appearing Parties: -----------



Judgment Text

(1.) HEARD learned counsel for the petitioners (plaintiff-decree holders). No one appears on behalf of the opposite parties in spite of valid service of repeated notices upon them.

(2.) THIS Civil Revision has been filed by the petitioners challenging order dated 23-3-2005, by which the learned subordinate judge-VIII, Siwan, set aside the entire auction proceeding of Execution Case No. 2 of 1989 after condoning the delay in filing of the application for setting aside auction sale.

(3.) THE plaintiffs had filed Partition Suit no. 211 of 1979 (12 of 1

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985) for partition of their 1/4th share in the suit properties. The said suit was decreed in 26-5-1986, whereafter preliminary decree was prepared, against which the defendants filed F. A. No. 357 of 1986, which is pending in this Court. Subsequently, in 6-2-1989 final decree was prepared by the learned trial Court in the partition suit, which was also challenged by the defendants in First Appeal No. 433 of 1989, which is also pending in this Court. It further transpires that Execution Case No. 2 of 1989 was filed by the plaintiff-decree holders (petitioners) for execution of the aforementioned decree, in which the defendant-judgment-debtors (opposite parties)appeared ad submitted before the executing court that they are going to bring an order of stay from the High Court but in spite of several adjournments, no such stay order was brought, whereafter delivery of possession was effected through the Commissioner.

(4.) IT transpires that the decree holder had also filed a petition for realization of decretal amount of Rs. 1250. 00 notices of which were repeatedly sent to the judgment-debtors and when they did not appear notices were published on 2-1-2004 but even then they did not appear and hence the learned executing Court auction sold the property of the judgment-debtors on 20-1-2004 and the decree-holders themselves purchased the said property for Rs. 1045. 00. Thereafter, the Court waited for about seven months but when no objection was raised, the said auction sale was confirmed by the executing Court on 8-10-2004. Much thereafter on 1-12-2004, the judgment-debtors appeared and filed a petition in the executing Court praying that the sale certificate be not issued to the decree-holders. Subsequently, on 25-2-2005, the judgment-debtors filed another petition under the provision of Order XXI, Rule 90 of the Code of civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) in the execution proceeding for setting aside the auction sale along with a petition under the provisions of Limitation Act, 1963 for condoning the delay in the filing of the said petition. The said petitions were filed in the execution case itself and not by way of separate proceeding. However, the said petitions were allowed by the learned Court below by impugned order dated 23-3-2005 condoning the delay and setting aside the entire auction proceeding.

(5.) IT transpires from the impugned order that the learned Court below had condoned the delay on the assumption that section 5 of the Limitation Act was applicable to the instant case. It also passed the impugned order on the assumption that the decree-holders were not entitled to purchase the land of the judgment-debtors in the auction sale in the execution proceeding. Article 127 of the limitation Act, 1963 specifically provides that a petition to set aside a sale in execution of a decree has to be filed within sixty days from their date of the sale. In the instant case, the date of sale is 20-1-2004 and the petition for setting aside the auction sale filed by the judgment-debtors under Order XXI, Rule 90 of the Code is dated 25-2-2005 and hence it is barred by a long period of limitation, Furthermore, even if the claim of the judgment-debtor is found to be true, he had the knowledge of the auction sale on 1-12-2004 when they appeared in the case and filed a petition praying that the sale certificate be not issued and hence from that date also the petition dated 25-2-2005 is much beyond sixty days. Section 5 of the Limitation Act specifically provides that any appeal or any application, other than an application under any of the provisions of Order XXI of the code may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Hence, any application under the provision of Order XXI of the Code is precluded from the ambit of section 5 of the Limitation Act and hence the learned Court below was not justified in allowing the limitation petition filed by the judgment-debtors under the provision of section 5 of the Limitation Act.

(6.) SO far other question regarding entitlement of the decree-holders in taking part in the auction is concerned, Order XXI, Rule 72 of the Code as per its Patna Amendment specifically provided that the decree-holder shall not be precluded from bidding for or purchasing the property unless there is an express order to that effect by a Court of law. In the instant case, there is no order of any Court of law restraining the decree-holders from taking part in the auction sale or from purchasing the property in question. This view also finds support from a decision of this Court in the case of Sachida Nand mishra v. Vishwanath Mishra, reported in 2007 (1) BBCJ 188.

(7.) IN the aforesaid facts and circumstances and in view of the aforesaid provisions of law, it is quite apparent that the impugned order suffers from grave illegalities and jurisdictional error and, accordingly, the same is set aside and this Civil revision is allowed. Revision allowed
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