ORDER
S.P. Srivastava, J.
1. Hakim Aaga Ali Ahmed, since deceased and now represented by his heirs and legal representatives, had filed the present writ petition feeling aggrieved by the order dated 16-7-1990 passed by the First Appellate Court whereunder it had dismissed his appeal challenging the judgment and order passed by the executing Court dated 16-11-1981, whereby rejecting his objections filed under Order 21 Rule 90, CPC, the sale of his residential house for satisfying a decree passed in the original Civil Suit No. 120-A/71 for the recovery of an amount of Rs. 1,598/- had been upheld. The heirs and legal representatives of the sole petitioner, since deceased, have prayed for the quashing of the aforesaid orders including the impugned proceedings relating to the auction sale held by the executing Court.
2. The original record relating to the execution proceedings had been summoned by this Court. I have heard the learned counsel for the parties and have carefully perused the record.
3. It may be noticed that in his application for getting the decree executed which has given rise to this writ petition, in column No. 9 of the said application, the decree-holder had indicated that Hakim Aaga Ali Ahmed s/o Hakim Aaga Ali Mohammad was residing at Mohalla Bade Hakimji Ka, Haal Abad (at present residing at) agency Hamdard Dawakhana SCF No. 5, Sector 27-C, Chandigarh, Punjab-Haryana. The Civil Suit No. 120-A/71 was decreed on the basis of the compromise. Under the terms of the decree, the defendant, Hakim Aaga Ali was required to deposit the rent amounting to Rs. 1.560/- for the period 26-6-1969 to 5-9-1972, in monthly instalment of Rs. 210/- and in default of payment of two instalments, the plaintiff was to become entitled to execute the decree. The defendant was to continue to remain the tenant of the plaintiff at a rental of Rs. 40/- per month. This decree was passed on 11-10-1972.
4. The facts in brief shorn of details and necessary for the disposal of this writ petition lie in a narrow compass : The executing Court on 30-9-1974 had passed an order requiring the decree-holder to get the notices of the execution proceedings served on the judgment-debtor on his correct address. On 7-12-1974, on the application of the decree-holder, he was allowed to get the service effected through registered post acknowledgment due. The executing Court had fixed 30-1-1975 as the next date in the case. The decree-holder pursuant to that order took steps to serve the respondent with the notice per registered post. The address given on that notice was that of Chandigarh. This notice was served on Hakim Aaga Ali at Chandigarh on 18-1-1975. The address on the aforesaid notice was as indicated in the execution application.
5. On 29-1-1975, Hakim Aaga Ali sent a telegram from Chandigarh addressed to the executing Court praying for an adjournment on account ofhis illness. The executing Court vide its order dated 30-1-1975, holding that the notice of the execution proceedings had been served directed for the issue of a warrant for the attachment of the immovable property fixing the next date in the case to be 8-3-1975.
6. The warrant for the attachment of the immovable property issued pursuant to the aforesaid order was served by affixation of the same on the house in dispute on 26-2-1975. The process server's report dated 26-2-1975 indicates that apart from affixing the copy of warrant of the house in dispute, a publication was also made by beat of drum.
7. On 16-9-1975, the decree-holder moved an application under Order 5 Rule 20, CPC, bringing to the notice of the Court that he is not able to get the service of the notice effected on Hakim Aaga Ali Ahmed. The judgment-debtor was the resident of Datia city but he went out of the city, with the result, the notice cannot be served. The matter had become old. Although the address of the judgment-debtor which had been given was that of Datia city but service could not be effected. In the circumstances, the decree-holder prayed that the notice be permitted to be served on the judgment-debtor through publication.
8. On 8-3-1976, the executing Court passed an order for service of the Ishtahar Nilam by publication. Ultimately, the Ishtahar Nilam under Order 21 Rule 66 was got published in the News Paper 'Nav-Prabhat' dated 16th October, 1975. In the notice published it was indicated that the terms of sale shall be settled on 22-10-1975. The order sheet does not indicate that the case was taken up on 22-10-1975. After several dates fixed in the case, on 12-10-1976, the next date fixed was 8-11-1976. On 8-11-1976, the order which had been passed was to the following effect :
^^8&11&76
fMh }kjk Jh frokjhA
lsy MsV futkjr ls izkIr gqbZ
vr,o b'rgkj uhyke tkjh gksA
uhyke rk-2-3-4 tuojh 77 dks gksxh
b'rgkj uhyke ckn rkehy rkjh[k 27&12&76 dks is'k gksA
gLrk-
C.J.I'
On 18-1-1977, the order sheet shows as follows :
^^18&1&77
fMh }kjk Jh frokjh
lsy MsV futkjr ls is'k gqbZ
vr,o b'rgkj uhyke tkjh gksA
bLrgkj ckn rkehy rkjh[k
28&2&77 dks is'k gksA
gLrk-
flfoy tt
izFke Js.kh**
The order sheets of the executing Court indicate that on several occasions Ishtahar Nilam was required to be published fixing different dates for sale but ultimately it was on the basis of Ishtahar Nilam claimed to have been published on 9-5-1980 that the auction sale was shown to have been held on 28-6-1980 at 4.00 P.M.
9. A perusal of the Ishtahar Nilam on the basis of which auction sale was held shows that the executing Court had fixed 28th, 19th and 30th of June, 1980, for the auction sale of the immovable property at Datia. The proclamation of sale indicates that sale was being held for recovering an amount of Rs. 1,598/- only. It was also indicated that the sale will be effected of that property which belonged to the judgment-debtor which had been described in the list attached with the proclamation.
10. The executing Court had issued a warrant of sale of the property vide the order dated 28-6-1980 directing that the house No. 714/3 situate in Mohalla Shanichara Bade Hakim Ka Makan, Datia, as per the map which had been attached under a warrant issued by that Court dated 9-5-1980 be sold by auction between 28th to 30th June, 1980 by affixing the notice in the Court house and after making the due proclamation for the recovery of an amount of Rs. 1.598A being the principal, interest and the costs.
11. It may be noticed that the aforesaid order had been passed by the Civil Judge, Class-I, Datia. However, the District Judge, Datia vide his order of the same date, transferred the execution case from the Court of Civil Judge, Class-I, Datia to the Court of Civil Judge, Class-II, Datia with a specific direction that further proceedings be taken on that day itself. It was thereupon that the Sale Ameen submitted a report that he had visited the house of the judgment-debtor and inspected the house to be sold for which (Sarkari boli) reserved price was being fixed as Rs. 50,000/-. After fixing the reserved price, offers were invited and the highest offer was received on 30-6-1980 which was for a sum of Rs. 24,500/-. In his report, the Sale Ameen had also indicated that he had reached at the house in question at about 4.00 P.M. on 28-6-1980 and had started the auction proceedings making it clear that the reserved price was Rs. 50,000/-. His report, however, does not indicate the time was fixed for accepting the bids on 29th June, 1980 or 30th June, 1980.
12. An objection under Order 21 Rule 90, CPC, was filed by the judgment-debtor on 10-7-1980 asserting that the property in dispute was not worth less than Rs. 75,000/- and it had been sold for the recovery of an amount of Rs. 1,598/- only- It was also asserted that before the auction sale the property had not been attached. It was also indicated that no proceeding according to law had been conducted complying with the provisions of Order 21 Rule 66, CPC. In spite of the fact that the execution had become more than 2 years old, the judgment-debtor had not been given any notice before proceeding to sell the property in question. It was also indicated that the entire proceeding stood vitiated on account of the transfer of the execution case, to another Court without first obtaining the non-satisfaction certificate from the original Court.It was also asserted that no orders had been passed disposing of the application dated 1-8-1977 filed by Mohd. Ali who claimed to be one of the co-owners and offered to deposit the entire decretal amount on behalf of the others.
13. The decree-holder filed reply to the aforesaid objection, on 28-8-1980. It was claimed that notices were duly published in the newspaper 'Nav Prabhat' on 16-10-1975 and the sale warrant was duly served. So far as the offer in regard to the payment of the entire decretal amount was concerned, it was asserted that the Sale Ameen had no jurisdiction to receive such application. It was claimed that the auction proceedings were conducted in accordance with law.
14. The judgment-debtor filed an application on 5-11-1980 praying to amend the application stating that in fact from the record it appeared that instead of house No. 713/3 situate in Sbanicham Mohalla, Datia, the attachment had been effected in respect of house No. 714/3 situate in Shanichara Mohalla, Datia. Another fact which was sought to be brought on record byway of amendment was that the house No. 714/3 which was auctioned belonged to Shamir Hasan s/o Sayad Nazir Hasan and some of the portion of Imam Bada situate in part of that house had already been released from the attachment vide the order dated 6-9-1979.
15. The auction purchaser had also filed an objection dated 19-10-1981 in opposition to the application filed by !be judgment-debtor under Order 21 Rule 90, CPC.
16. The executing Court vide its judgment and order dated 16-11-1981 dismissed the objection holding that the substituted service of notice by publication was sufficient. The executing Court was further of the view that there was no irregularity in the auction sale. The auction sale was accordingly confirmed.
17. The executing Court however directed that out of the amount of auction money, an amount of Rs. 18,428.75 ps. which represented the mortgaged amount was liable to be paid to the decree-holder. Further, an amount of Rs. 2,500/- was liable to be paid for satisfying the liability in regard to the loan amount which was to be discharged by the decree-holder. Out of the remaining amount of Rs. 3,571.75 ps. an amount of Rs. 1.598/- was liable to be paid to the decree-holder as the principal amount under the decree. Besides the execution fee of Rs. 65/-, the remainder i.e., an amount of Rs. 1,908.75 ps. was liable to be paid to the judgment-debtor. The decree was struck off in full satisfaction with the above directions.
18. The judgment-debtor thereafter filed an appeal challenging the aforesaid order. Before the Appellate Court, it was pointed out that Sewak Sharan Gupta, the decree-holder himself was a judicial officer posted as Additional District Judge and it was on account of his influence that the required opportunity of hearing had not been afforded to the appellant. It was also asserted that the whole auction sale was conducted in a fraudulent manner in collusion with the decree-holder and the auction sale was vitiated in law on account of the serious material irregularities.
24-A. So far as the proviso (b) inserted vide the amendment which was enforced in the year 1977 is concerned, the said proviso could not come to therescue of the decree-holder in the facts and circumstances of the present case as by 30-1-1975, only notice of the execution proceedings could be taken to have been served on the judgment-debtor and that too at his address at Chandigarh on 18-1-1975. Steps to get the order of attachment served were taken by the decree-holder on 7-2-1975 and in spite of the fact that the judgment-debtor was residing at Chandigarh on the own showing of the decree-holder, the notice for attachment under Order 21 Rule 54, CPC was served by affixation of the same on the house in dispute on 26-2-1975 and at chouraha and publication by beat of drum. No effort was made by the decree-holder to serve the notice on the judgment-debtor at his known address at Chandigarh.
25. The proviso in question contemplates that where notice of the date for settling 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 Rule 66 of Order 21, CPC to the judgment-debtor unless the Court otherwise directs.
26. In the present case, there is nothing on the record which could lead to an inference that any notice of the date for settling the terms of the proclamation under Order 21, Rule 54, CPC was issued to the judgment-debtor and served upon him.
27. The proclamation of sale in an important part of the proceedings and the details should be ascertained and noted with care. The proclamation settled has to be signed by the Judge and got published in the manner prescribed under Order 21 Rule 67, CPC. The proclamation should include the estimate, if any, given by either the judgment-debtor or the decree-holder or both the parties. Service of notice on judgment-debtor under Order 21 Rule ' 66 (2), CPC, unless waived by appearance or the proceeding being ex parte, is a fundamental step in the procedure of the Court in execution. The judgment-debtor should have an opportunity to give the estimate of the property. This estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled and to prevent them from offering inadequate price and to enable them to make a decision in offering adequate price. Absence of notice to the judgment-debtor disables him to offer his estimate of the value, who better knows its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale.
28. The Apex Court in its decision in the case of Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, reported in 1994(1) SCC 131, had observed that a sale made 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. It was emphasised that the service of notice on thejudgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the executing Court to take further steps to sell his immovable property. In the circumstances, therefore, issue of notice under Order 21 Rule 66 (2), CPC, unless proviso is applied (if not already issued under Order 21 Rule 22), and its service is mandatory. The omission to serve a notice before settling the terms of the proclamation to the judgment-debtor renders the sale void unless the judgment-debtor appears without notice and thereby waives the service of notice. The record must indicate that a judicial order had been passed showing that the Court had applied its mind to the need for determining all the essential particulars which would reasonably be looked for by an intending purchaser. The relevant and material particulars should be inserted in the sale proclamation as accurately and precisely as possible. The order should show that the Court considered the objections, if any, of the decree-holders or the judgment-debtors, as the case may be. The Court should not merely accept unhesitatingly the ipse dixit of one or either side or both.
29. It was also observed that the proviso to Rule 66 (2) comes into play dispensing with multiplicity of notices and not dispensation of mandatory compliance of issuance and service of notice to the judgment-debtor. In a case where notice was served and the appellant did not object to the valuation given by the decree-holder, certainly that would be put against the judgment-debtor to impugn the irregularities after the sale or the under-valuation settled by the Court in the proclamation of sale.
30. In the present case, from the evidence and the materials brought on record, it is apparent that the executing Court had not applied its mind to the settling the other terms of the proclamation of sale and except giving a schedule of dates for conducting the sale, the executing Court totally abdicated its duty to scrupulously comply with the mandatory procedure and did not apply its mind to the compliance of the duty cast on it by Order 21 Rule 66 to settle the terms of proclamation of sale and to effect the proper publication under Rule 67. A sale on the basis of the proclamation of sale drawn casually without compliance of the mandatory requirement and a sale held in furtherance thereof is not a sale in the eye of law and such a sale cannot be deemed to be a sale as warranted by law.
31. The Apex Court had clearly observed that the non-compliance of Order 21 Rules 66 and 67 is a flagrant breach of the mandatory provision and the consequential sale is a nullity ab initio.
32. The Apex Court had emphasised that the total absence of the drawing up of the proclamation of sale and settlement of its terms by judicial application of mind renders the sale a nullity being void. It was also observed that the non-application of the mind whether sale of a part of the property would satisfy the decree debt is a material irregularity giving substantial injury to the appellant attracting Order 21 Rule 90, CPC. In either case, the sale is liable to be set aside.
33. In the aforesaid case, the site in question was got valued with anapproved valuer at more than Rs. 3,00,000/-. The Court had observed that the sale 550 sq. yards, which had been so valued, for the recovery of a paltry sum of Rs. 7,780.33 ps. without selling a portion thereof, caused substantial injury to the appellant.
34. As has already been noticed hercinabove, in the proclamation of sale, no time had been fixed for actually effecting the same. The Sale Ameen in his report had asserted that he had gone to get the sale conducted on 28th, 29th and 30th of June, 1980. He had reached the place where the house in dispute was situate at 4.00 P.M., on 28-6-1980. This time had not been fixed in the sale proclamation. The lime for the auction sale on 29th and 30th June, 1980 had also not been fixed.
35. The omission to state in the proclamation the time of sale has to be held to be a material irregularity within the meaning of Order 21 Rule 90, CPC. It is not enough merely to mention the day of sale but the hour of sale should also be stated.
36. The provision contained in Order 21 Rule 66 (2) (a), CPC, as amended makes it imperative on the part of the Court to find out if a part of the property required to be auctioned could be sufficient to satisfy the decree. It is only that part of the property which could satisfy the decree which would have been liable to be auctioned.
37. In the present case, no such effort was made by the executing Court and it had failed to carry out its statutory obligation.
38. Taking into consideration the facts and circumstances noticed hereinabove, sufficient ground has been made out for interference by this Court.
39. In the result, this writ petition succeeds in part. The impugned orders dated 16-11-1981 passed by the executing Court (a true copy of which has been filed as Annexure P-4 to the writ petition) and the order dated 16-7-1990 passed by the First Appellate Court (a true copy of which has been filed as Annexure P-6 to the writ petition) as well as the sale-certificate in question arc quashed with a direction to the executing Court to proceed further in the matter in accordance with law.
40. It is further provided that the decree-holder who has received the amount of sale consideration paid by the auction purchaser shall refund the said amount to the auction purchaser alongwith an interest at the rate of 12% per annum for the period calculated from the date of the deposit of the amount in the Court till its payment to the auction purchaser. The executing Court shall take appropriate steps to ensure the refund of the aforesaid sale consideration to the auction purchaser as indicated hereinabove.
41. There shall however be no order as to costs.