Santram Vs. Joginder Singh and ors. - Court Judgment

Excerpt:

.....and also that auction was vitiated by material irregularities - no notice as to sale was given to petitioner - no opportunity of hearing afforded to him - question that whether petitioner had any right or title in property was not considered by court - matter remitted back for consideration of same and to be decided accordingly. - - order 21, rule 2, which provides for certification of an adjustment come to out of court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgmentdebtor and the decree-holder, and when no other interests have come into being. thereforee after a sale is duly held, the court cannot refuge to confirm the sale on the ground that the decree-holder and judgmentdebtor say that the decree has been satisfied out of court. subsequently on 2nd march 1979 the learned sub-judge passed an order that 'in view of the statement of the parties dated 5th february 1979 the file be consigned to the record room as fully satisfied......of the judicial record would show that an application dated 5th february 1979 was made by the decreeholder, respondent no. 1, for recording satisfaction of the decree and the statement of the decree-holder to that effect was recorded on the same date. subsequently on 2nd march 1979 the learned sub-judge passed an order that 'in view of the statement of the parties dated 5th february 1979 the file be consigned to the record room as fully satisfied.'. (26) to say the least the said order is absolutely mindless. it betrays not only total non-application of judicial mind by the learned sub-judge but also ignorance of law on the subject. it is fundamental to our jurisprudence that the party against whom an order is sought to be made must be afforded an opportunity to be heard. it appears that in unholy haste in which the aforesaid order was passed the learned sub-judge did not even think of issuing a notice of the said application to the auction purchaser who had by then acquired a vested right in the litigation. hence, whatever be the factual position the said order cannot bind or operate to the detriment of the auction purchaser, respondent no. 3. (27) to sum up, thereforee,.....

Judgment:

ORDER

21, Rule 2, which provides for certification of an adjustment come to out of Court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgmentdebtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected, a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. thereforee after a sale is duly held, the Court cannot refuge to confirm the sale on the ground that the decree-holder and judgmentdebtor say that the decree has been satisfied out of Court.'

(25) A perusal of the judicial record would show that an application dated 5th February 1979 was made by the decreeholder, respondent No. 1, for recording satisfaction of the decree and the statement of the decree-holder to that effect was recorded on the same date. Subsequently on 2nd March 1979 the learned Sub-Judge passed an order that 'in view of the statement of the parties dated 5th February 1979 the file be consigned to the record room as fully satisfied.'. (26) To say the least the said order is absolutely mindless. It betrays not only total non-application of judicial mind by the learned Sub-Judge but also ignorance of law on the subject. It is fundamental to our jurisprudence that the party against whom an order is sought to be made must be afforded an opportunity to be heard. It appears that in unholy haste in which the aforesaid order was passed the learned Sub-Judge did not even think of issuing a notice of the said application to the auction purchaser who had by then acquired a vested right in the litigation. Hence, whatever be the factual position the said order cannot bind or operate to the detriment of the auction purchaser, respondent No. 3. (27) To sum up, thereforee, this revision petition succeeds although on a ground different from that on which the impugned order is founded. Since there is no finding as yet as to whether the petitioner has acquired any right or interest in the mortgaged property by virtue of purchase or otherwise, as alleged, the case is remanded to the executing Court for fresh decision in the light of the observations made above after determining whether the petitioner has acquired any right or interest in the mortgaged property/equity of redemption which would entitle him to redeem the property in question. The parties are directed to appear before the executing Court on 25th March 1986 for further proceedings. (28) Keeping in view all the circumstances of the case, no order is made as to costs in this petition.