2006 PLP 764 (CLD)

Present appeal, filed by the appellant/judgment-debtor, proceeds against order dated 6-9-2005, whereby the learned executing Court dismissed appellant's petition under Order XXI, rule 90, C.P.C.

2. Briefly stated facts of the case are that pursuant to passing a decree, dated 25-2-1997, for a sum of Rs.12,16,232 along with costs of suit of Rs.47,464 by the learned Judge Banking Court, against the appellant, the decree-holder filed the execution petition. During the execution proceedings, appellant's mortgaged property was put to sale/auction and the decree-holder obtained necessary permission, from the executing Court, to purchase the property. The sale was held on 6-1-1999; the mortgaged property was purchased by the decree-holder; the auction was confirmed on 12-3-1999; the sale certificate was issued on 29-6-1999 and thereafter the execution petition was consigned to the record. The appellant, on 5-9-2005, filed the objection petition under the provisions of Order XXI, rule 90, C.P.C., seeking setting aside of sale, (which attained finality as far back as on 29-6-1999) however, the learned Banking Court, after finding, inter alia, that the objection petition is barred by time, proceeded to dismiss the same, vide impugned order dated 6-9-2005.

3. Learned counsel for the appellant, while reiterating the contentions, recorded in the impugned order, states that the ex parte decree was passed against the appellant and he was neither served in the suit nor in the execution petition, therefore, the sale/auction of the mortgaged property is not sustainable in law.

4. We have heard the learned counsel and examined the summoned record. Admittedly, as noted above, the sale was held on 6-1-1999; it was confirmed on 12-3-1999; sale certificate was issued on 29-6-1999, thereafter the execution petition was consigned to record being satisfied and the appellant filed the objection petition, under Order XXI, rule 90, C.P.C., on 5-9-2005. It flows therefrom that the petitioner filed the objection petition after the lapse of six years from the date of issuance of sale certificate. The application under the said provisions of law has to be made within 30 days of the date of sale, as envisaged under Article 166 of the Limitation Act, which Article, for facility of reference is reproduced below:-- "166:--Under the same Code to Thirty days The date of set aside a sale in execution of a the sale decree, including any such application by a judgment-debtor. It flows from the above that the limitation period prescribed for filing an application to set aside a sale in execution of the decree is 30 days and the limitation period will start from the date of the sale. In the instant case, the date of the sale, as noted above, is 6-1-1999, therefore, the objection petition, filed on 5-9-2005, was grossly barred by time and the same was rightly dismissed by the learned Judge Banking Court.

5. It is evident from the record that the mortgaged property could not be sold thrice and thereafter the decree-holder, after obtaining necessary permission from the learned executing Court, participated in the auction. The Court Auctioneer, after completing all the formalities and making the proclamation of sale/auction, auctioned the property in favour of the decree-holder against the reserve price of Rs.1,300,

000. The learned counsel could not point out any illegality or legal infirmity in the process of auctioning the property and the ensuing proceedings. To our mind, the sale was held completely in accordance with law and no exception can be taken to that.

6. In the above perspective, we have examined the impugned order and find that the same does not suffer from any legal infirmity, thus we are not inclined to interfere in the matter. The impugned order is maintained.

7. Upshot of the above discussion is that the present appeal is devoid of merits, hence stands dismissed. M.H./A-47/L Appeal dismissed