Amitava Roy, J.@mdashHeard Mr. Sahewalla, learned senior counsel for the petitioner and Mr. S. S. Sarma, learned counsel for the Respondent/Opp. party.
By this application u/s 115 of the CPC read with Section 151 of the Code, petitioner has challenged the order dated 7.11.2002 passed by the Civil Judge, Senior Division No. 1 Silchar in Title Execution Case NO. 8 of 1996, directing publication of sale proclamation for putting on auction sale, the vehicle purchased by the petitioner with loan from the Opp. Party. The petitioner incidentally has also challenged the sale proclamation that was published pursuant to the said order of the court.
The short facts are that the petitioner, after taking a loan of Rs. 1,65,000 from the opposite party, purchased a Truck under registration No. ASC 8018. Having failed to repay the loan, he was in default. A suit was filed by the Opp. Party Bank for realisation of the dues and the same was decreed for Rs. 4,37,000 The execution case being Title execution case No. 8/1996, was thereafter filed by the Opposite party/decree holder in connection with which the impugned order dated 7.11.2002 was passed requiring the Opposite party/Decree holder to take steps for sale and publication of proclamation for putting the attached vehicle of the petitioner to sale by public auction. Pursuant to the said order an auction notice was published in the issue dated 28.11.2002 of the Dainik Sonar Cachar.
The only argument advanced by the learned counsel for the petitioner is that the auction notice, which is infact the sale proclamation, is not in terms of the requirements of Order 21 Rule 66 CPC as it does not mention the amount for the recovery of which the sale has been ordered. He, therefore, submitted that the auction notice being in contravention of the said provision of the CPC, no sale can be conducted on the basis thereof.
This court by order dated 13.12.2002 issued notice of motion and stayed the operation of the impugned order dated 7.11.2002 as well as the auction notice dated 28.11.2002.
Mr. Sarma, learned counsel for the Opp. Party on the other hand submitted that the omission to mention the amount to be recovered in the sale proclamation by itself does not render it invalid and therefore the petitioner is liable to be dismissed.
In view of the fact that a decree has been passed against the petitioner and the execution proceeding has been initiated for realisation of the decretal amount and further due to the intervention of this court, the auction as fixed by the impugned auction notice could not be held on the fixed date, I do not see any reason to enter into the merit of the controversy at this stage. The petition, with efflux of time, has become infructuous.
However, in order to avoid any further controversy, with regard to the auction sale that has to be conducted for the realisation of the decretal amount by putting the vehicle in auction sale, it is observed that the learned court below would ensure that the related sale proclamation to be published next is in terms of the requirements of Order 21 Rule 66 of the CPC as well as the form prescribed for the purpose.
Petition stands disposed. Interim order passed earlier stands vacated.
