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MAHENDRA SINGH versus BALJIT SINGH AND ORS

High Court of Judicature at Allahabad

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Mahendra Singh v. Baljit Singh And Ors - SECOND APPEAL No. 801 of 1975 [2006] RD-AH 16051 (14 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 30.

Second Appeal No. 801 of 1975.

Baljit Singh  and others        ...    Plaintiffs-Appellants  

                                        Vs.  

Jagpal                                    ...    Defendant-Respondent.

Hon. Sunil Ambwani, J.

Heard Sri A.K. Tripathi, holding brief of Sri A.D. Prabhakar for the appellants and Sri V.S. Chaudhary for respondent.

This second appeal arises out of suit filed by the decree holder in O.S. No. 716 of 1962 decreed by the IInd Additional Munsif , Ghaziabad against the plaintiff's father for payment of Rs. 111.59 as costs of the suit, in execution thereof the land of the plaintiff's father was attached and sold.

The plaintiff alleged material irregularities and fraud in the proceedings of sale in which  2 ½  bighas land then valued at Rs. 1,000/- and was sold for Rs. 155/- only, for realization of the decreetal amount of Rs. 151/-.

The trial court decreed the suit no. 1319 of 1965 on 30.7.1973, with the findings that whereas the sale was required to be held at village  Bijraul were actually held at Jalalpur.  The property was irrigated from canal and could yield two crops in a year.  It was valued at Rs. 1,000/- per kachcha bigha.  The trial court further found that the auction purchaser did not deposit Rs. 3.56 P. in the Court as provided under Order 21 Rule 85 C.P.C..  The execution appeal was allowed reversing the findings of the trial court on the ground  that the father of the plaintiff and the plaintiffs were fully aware of the execution proceedings.  They refused to accept the notice and that any material irregularity could not be a ground to file a suit for

2

setting aside auction sale.  Such a suit was barred by Order 21 Rule 92 (3) of the C.P.C.  It was further held that  there were no specific pleadings or proof of fraud in auction sale of the plots.

Order  Rule 21 Rule 92(3) of the C.P.C. clearly bars the  suit to set aside the order made under the rule by which the sale becomes absolute, brought by any person against whom such order is made.  A third party, however,  has been only given right to challenge the judgment by filing suit against auction purchaser.   In the present case the appellant had knowledge of the execution proceedings.  The fact that the sale was held in the adjoining village or that Rs. 3.65 was deposited after 15 days, could not vitiate the sale on the ground of fraud.

The second appeal does not offer any question of law to be decided .  The suit in fact was not maintainable.  The second appeal is consequently dismissed with costs.

Dt. 14.9.2006.

BM/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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