JUDGMENT
Harjit Singh Bedi, J.
1. The facts giving rise to the present petition are thus :
On February 23, 1985, an application was filed under Section 31 of the State Financial Corporations Act, 1951, by the respondent for sale of the property that had been mortgaged by the petitioner-judgment debtor for securing a loan. On July 16, 1985, the mortgaged property was attached and on November 28, 1986, the Additional District Judge, Faridkot, ordered the sale of the property for the recovery of the amount claimed by the Corporation. In pursuance of this order, the property was actually auctioned and purchased by the Corporation itself on October 26, 1988, in execution of the decree. The sale in favour of the respondent-Corporation was confirmed on January 4, 1987, in execution the sale certificate was issued and possession handed over on January 30, 1989. The petitioner moved an objection application before the executing court on March 16, 1988, for setting aside of the auction on account of various irregularities in the procedure. This application was dismissed on the same day by the court on the plea that it had ceased to have jurisdiction in the matter as the sale had been confirmed on January 4, 1988, as no objections had by then been filed with regard to the auction. The court also held that there was no provision in the Code of Civil Procedure whereby objections against an auction could be entertained after the sale had been confirmed.
Aggrieved by the order of the executing court, the petitioner has come up
in revision before this court.
2. At the time of motion hearing of the petition, counsel cited Pandurangan v. Dasu Reddy, AIR 1973 Mad 107, in support of his assertion that the executing court could under certain circumstances entertain the objections filed under Section 47 of the Code of Civil Procedure even after the sale had been confirmed and there was no complete embargo placed on the court. On this argument, the matter was admitted on October 27, 1988. Learned counsel for the petitioner has, in addition, relied upon Sarwan Singh v. Man Singh, AIR 1939 Lah 222, in which it has been held by the Lahore High Court that the sale was liable to be challenged even after confirmation in the event that the notice of the auction sale had not been given to the judgment-debtor. It was observed thus (at page 222) :
“In the circumstances, it is difficult to see how the second proviso to Order 21, Rule 90, can be said to apply. That proviso only precludes objection to a sale being entertained at a later stage if it could have been put forward earlier, but if the judgment-debtors were never served with a notice, it is obvious that the objection could not have been preferred earlier. ”
After hearing learned counsel for the parties and going through the judgments cited by counsel, I am of the, view that the present petition deserves to succeed. In the reply to the stay application moved in the present petition, a clear averment had been made that the notice of the intended sale as envisaged under Order 21, Rule 66(2) of the Code of Civil Procedure, had not been given to the judgment-debtor. This fact has not been denied and this omission has been sought to be justified by stating that in the facts and circumstances of the case, no notice was required to be given. This stand is contrary to the judgment of the Lahore High Court in. Sarwan Singh v. Man Singh, AIR 1939 Lahore 222, in which the same point had been canvassed but not accepted by the court. Moreover, it is to be noted that the provisions of Order 21, Rule 66 of the Code of Civil Procedure are based on the principle that no order to the detriment of a party can be passed against him unless he be heard.
3. Admittedly, this was not done. The judgments cited by learned counsel for the respondents, on the other hand, are clearly distinguishable. In Ram Chander v. Sarupa, AIR 1939 Lahore 113, notice of the intended sale had been given whereas in the case of Bayhla Briquette Industries v. Punjab Financial Corporation, AIR 1986 Punj 80, the only issue decided was as to whether an auction sale could be confirmed prior to the decision on the objections filed.
4. For the reasons, recorded above, the present petition is allowed, the order of the executing court dated March 15, 1988, is set aside and the case is remanded to the executing court to decide the objections filed expeditiously. The parties are directed to appear before the said court on July 19, 1994.