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TMI Blog2008 (4) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the JDs/appellants and was paid only ₹ 1.60 lacs. He had agreed to accept the remaining amount of ₹ 5.60 lacs in 4 installments 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 ₹ 6,31,750/- by sale of such property. JDs/appellants in their written statements had admitted liability to pay ₹ 5 lacs as principal and ₹ 65,000/- as interest and pendentelite interest @ 1% per month. They disputed that Babulal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 respectively. No question as to non-executability of the decree had been raised by the JDs according to the High Court. On 16/10/1992 the court below directed that name of Babulal Gupta be deleted from the execution application as there had been no decree against him. A question was also raised suo motu by the court whether the decree in its terms being preliminary decree could be executed as it is, or the DH- respondent be directed to obtain a final decree. The executing court granted several adjournments for arguments on this question. On 12/2/1993 the executing court stayed the proceedings of the execution to await the result of proceedings under Order I Rule 10 and Section 151 of the Code before the trial court in the original c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the executing court did not follow the mandatory procedure as provided under the Code. 4. It was submitted that the High Court by the impugned order erroneously reversed the judgment on the ground that the appellant could be presumed to have known of the proceeding and it is not a case of complete non issue of service of attachment of warrant and that ratio of the decision in Deshbandhu Gupta v. N.L. Anand @ Rajinder Singh [1994(1) SCC 131] does not apply. 5. Learned counsel for the respondent on the other hand submitted that the High Court has analysed the factual position in the background of legal position as set out by this court. 6. When a property is put up for auction to satisfy a decree of the Court, it is mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fundamental step in the procedure of the Court in execution, judgment-debtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verify as accurately and fairly as possible so that the intending bidders are not mislead or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad Vs. Babu Bhakta Ratan, this Court after noticing the conflict of judicial opinion among the High Courts, said that a review of the authorities as well as amendments to Rule 66 (2) (e) make it abundantly clear that the Court, when stating the estimated value of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment debtor or the decree holder. A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a Court only where the owner is given notice of the execution for attachment and sale of his property. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not think it necessary to deal with those aspects in detail in view of the order proposed to be passed. From the records it is revealed that ₹ 14,38,893/- and ₹ 4,46,926/- have been deposited by the appellant purportedly for satisfaction of the Execution Court Ujjain and Indore respectively. The appellant shall further deposit a sum of ₹ 15,00,000/- within 4 months from today. The respondent No.1 shall be entitled to withdraw the amount deposited in the bank with accrued interest. The appellant shall be responsible for payment of the property tax of the property from the date of execution of sale deed i.e. 5.12.1986 till date and the same shall be paid deposited with the concerned authority within the aforesaid period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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