JUDGMENT
Hemant Gupta, J.
1. The petitioner-auction purchaser-is aggrieved against the order passed by the learned First Appellate Court whereby the appeal of the judgment-debtor against the order dismissing the appeal of the judgment-debtor against the order dismissing his application under Order 21 Rule 89 and Order 21 Rule 90 of the Code of Civil Procedure (hereinafter to be referred as “the Code”) was allowed and it was held that sale suffers from material irregularities.
2. The decree-holders filed an execution application for recovery of the amount of Rs. 2,49,618-05 from the judgment-debtor i.e. Ludhiana Improvement Trust on account of compensation of the land acquired. The property of the judgment-debtor i.e. plot measuring 400 sq. yards situated in Rani Jhansi Road, Ludhiana, was put to auction on 4.12.1995. In the said auction, the present petitioner was the highest bidder in the sum of Rs. 13,50,600/-. After the petitioner was found to be the highest bidder, the judgmentdebtor filed one application for stay of confirmation of sale on 22.12.1995 wherein it was pointed out that the judgment-debtor has already deposited a sum of Rs. 1,82,399/- and after deducting a sum of Rs. 11,159/- as income-tax, the balance amount has been disbursed to the decree-holders on 7.6.1995 and the judgment-debtor is prepared to pay the entire amount to the decree-holders after adjustment of the amount already paid within a reasonable time. However, on 3.1.1996, the judgment-debtor moved an application under Order 21 Rule 89 of the Code and deposited the balance amount of decree alongwith 5% of the decretal amount/ purchase money i.e. Rs. 67,219/- towards the balance of the decretal amount and Rs. 12481/- towards 5% of the decretal amount.
3. The learned Executing Court dismissed the applications filed by the judgmentdebtor on 22.12.1995 and 3.1.1996 and ordered confirmation the sale. The learned Executing Court dismissed such application for the reason that 5% of the amount required to be deposited by the judgment-debtor is the amount of auction sale and since the said amount has not been deposited, therefore, the learned Executing Court dismissed such application. However, the appeal against the said order has been accepted as the learned first Appellate Court has found that the sale of the property is vitiated on account of non-serving of mandatory notice to the judgment-debtor under Order 21 Rule 66 of the Code as well as for the reason that the property measuring 400 sq. yards was put to auction for Rs. 13,50,600/- whereas only portion of the property was sufficient to satisfy the decree. The Court remanded the matter to the learned Executing Court to give proper notice to the judgment-debtor before drawing upon the proclamation of sale and to put to auction only a portion of the property which is sufficient to satisfy the decretal amount.
4. Learned counsel for the petitioner has vehemently argued that once the judgmentdebtor has moved an application for payment of the decretal amount in terms of Order 21 Rule 89 of the Code, then the objections filed under Order 21 Rule 90 of the Code do not survive as the application for deposit of the decretal amount presupposes the withdrawal of all other objections to the auction. It is also contended that the sale has been conducted in accordance with the rules after the judgment debtor failed to submit the calculations sought for.
5. The argument raised by the learned counsel for the petitioner that under Sub-rule (2) of Rule 89 of Order 21 of the Code, the judgment-debtor was competent to make an application or prosecute the application under Rule 89 of the Code only after the judgment-debtor has withdrawn the application under Rule 90 of the Code. However, the said argument is legally correct but in the present case, the learned first Appellate Court has set aside the order passed by the learned Executing Court confirming the sale but has not accepted the application filed by the judgment-debtor under Order 21 Rule 89 of the Code. It was open to the learned first Appellate Court on the basis of the record to return a finding that the sale cannot be confirmed for different reasons than the one even alleged by the judgment-debtor. The confirmation of sale is not mechanical by the Court but it was an obligation on the Executing Court to verify whether the sale been conducted in accordance with rules.
6. A perusal of the record shows that the decree-holders filed execution for recovery of Rs. 2,49,618.05 including interest from the judgment-debtor. In the said case, a sum of Rs. 1,82,399/- was deposited by the judgment-debtor and a sum of Rs. 1,71,240/- was withdrawn by the decree-holders on 7.6.1995. The application under Order 21 Rule 66 of the Code for proclamation of sale of plot measuring 400 sq. yards situated at Rani Jhansi Road, Ludhiana, was filed by the decree-holders on 21.4.1995 wherein the tentative cost of the plot was stated to be more than Rs. 10 lacs. On 24.4.1995, the notice of the application was ordered to be issued to the judgment-debtor for 20.5.1995 but there is nothing on the record to prove that notice of the said application was received by the judgment-debtor. On 20.5.1995, the Executing Court passed an order of disbursing the amount deposited by the Improvement Trust to the decree-holders and the Executing Court adjourned the case to 22.7.1995 for filing of calculations. However, on 25.6.1995, the execution was adjourned to 2.9.1995 on account of the fact that the Presiding Officer was to proceed on training. The file was taken up on 4.9.1995 as the Court was closed on 2.9.1995. The case was adjourned to 23.9.1995 for filing of calculations. On the said date, the learned Executing Court ordered sale of the property for the reason that the calculations have not-been filed. Subsequently, another order has been passed on the said date to the effect that calculations have been filed by the decree-holders. A perusal of the file further shows that the publication of the sale was effected for the recovery of Rs. 2, 49, 618.05 vide proclamation signed by the Executing Court on 12.10.1995. The Court Auctioneer conducted the auction on 4.12.1995 with reserve price of the plot, as per Registrar Notification, at Rs. 12 lacs although such reserve price has not been fixed by the learned Executing Court nor is reflected in the proclamation of sale.
7. The undisputed facts are that out of a sum of Rs. 2,49,618.05, a sum of Rs. 1,82,399/- was already deposited by the judgment-debtor but still the proclamation of sale has not reflected the payment made by the judgment-debtor. Under Sub-rule (2) of Rule 66 of Order 21 of the Code, the proclamation of sale is required to be drawn up after notice to the decree holder and the judgment-debtor and is required to state fairly and accurately (i) the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part; (ii) the revenue assessed upon the estate or part of the estate; (iii) any encumbrance to which the property is liable; and (iv) the amount for the recovery of which the sale is ordered.
8. The relevant part of Rule 66 of Order 21 of the Code reads as under:-
“66. Proclamation of sales by public auction.- (1) where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
2. Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of the estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value, of the property;
Provided that where notice of the date for selling the terms of the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise direct;
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties.”
9. Even in terms of the application filed by the decree-holder in settling the terms of the sale, the tentative cost of the plot was said to be more than Rs. 10 lacs. The amount due on the date of sale was less than Rs. 1 lac. The question is whether it was fair and reasonable for the learned Executing Court to put such plot to sale without disclosing the correct amount for the recovery of which the sale was ordered and without passing any order on the application filed by the decree-holders under Order 21 Rule 66 of the Code. Still further, the proclamation was to include the estimate given by the decreeholders in terms of the proviso to Sub-rule (2) of Rule 66 of Order 21 of the Code. The learned Executing Court has failed to comply with the mandatory provisions of sub rule (2) of Rule 66 of Order 21 of the Code, inasmuch as the notice was ordered to be issued to the judgment-debtor but not served. The Court has not recorded the satisfaction that the sale of the property or part of the property would be sufficient to satisfy the decree; has not mentioned the correct amount for recovery of sale as well as also not given the estimate given by the judgment-debtor in the proclamation are the irregularities sufficient not to confirm the sale in favour of the petitioner.
10. The valuable property of a public body was put to sale in wholly cryptic and whimsical manner by the learned Executing Court which has been rightly not confirmed by the learned first Appellate Court.
11. It has been held by Hon’ble Supreme Court in the case of M/s Shalimar Cinema v. Bhasin Film Corporation and Anr., A.I.R. 1987 S.C. 2081 that it is the duty of the Court to see that the requirements of Rule 66 of the Code are complied with.
“In the view that we propose to take on the second question, we do not consider it necessary to express our view on the first question. But we do wish to say that the court has a duty to see that the requirements of Order XXI, Rule 66 are properly complied with. In the words of the Judicial Committee, “In sales under the direction of the court, it is incumbent on the court to be scrupulous in the extreme”. Though it may not be necessary for the court to make a valuation and enter it in the sale proclamation in every case, it is desirable at least in cases of sale of valuable property that the court make its valuation and enter it in the sale proclamation.. We think it necessary to add that no action of the court or its officers should be such as to give rise to the criticism that it was done in an indifferent or casual way. We are constrained to make these observations because it was found by the learned Single Judge in the present case that there actually was no application under O.XXI, R.66 and that the sale proclamation was prepared in a routine fashion…”
12. Similarly, in the case of Desk Bandhu Gupta v. N.L. Anand and Rajinder Singh, Judgments Today 1993(5) S.C. 313, Hon’ble Supreme Court has held that service of notice on judgment-debtor is a fundamental step in the procedure of the Court in execution. Hon’ble Supreme Court held to the following effect:-
“Above discussion do indicate discernible rule that service of notice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(IA) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation of sale. The omission therefore renders the further action and the sale in pursuance thereof void unless the judgment-debtor appears without notice and thereby waives the service of notice.”
13. The findings recorded by the learned first Appellate Court are based upon cogent reasons and in accordance with well established principles of law.
14. Consequently, I do not find any illegality or material irregularity in the finding recorded by the learned first Appellate Court warranting interference by this Court in exercise of its revisional jurisdiction.