Allahabad High Court
Smt.Asma Khatoon vs Board Of Revenue U.P.Lucknow ... on 5 August, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 24.07.2013)
(Judgment delivered on 05.08.2013)
Court No. - 21
Case :- MISC. SINGLE No. - 2493 of 2007
Petitioner :- Smt.Asma Khatoon
Respondent :- Board Of Revenue U.P.Lucknow Thr.Chairman And 4 Others
Counsel for Petitioner :- S.K.Mehrotra
Counsel for Respondent :- C.S.C.,Devendra Pratap Singh
Hon'ble Sibghat Ullah Khan, J.
Heard Sri S.K. Mehrotra, learned counsel for petitioner and Sri Devendra Tripathi, learned counsel for respondent No.4, the auction purchaser. The petitioner in the title of the writ petition has described herself as daughter of Mohd. Umar even though she is married and is wife of respondent No.5, Mehfooz Ahmad. (In the entire writ petition also it has nowhere been stated that the petitioner is wife of respondent No.5) Under the facts and circumstances of the case, the description is purely mala fide.
Respondent No.5, Mefooz Ahmad, husband of petitioner and two others took loan of more than Rs.3 lacs from Minority Financial Development Corporation on an extremely concessional rate of interest i.e. 3% per year. For recovery of the loan proceedings were initiated against respondent No.5. A house belonging to him was attached on 16.04.2001 and auctioned on 11.09.2001. Respondent No.4, Smt. Saliha Begum was the highest bidder, her bid being Rs.1.25 lacs, accordingly it was sold to her. Respondent No.5, Mehfooz Ahmad in order to frustrate the recovery proceedings, after the attachment, sold the house in dispute to his wife petitioner on 31.05.2001. Mefooz Ahmad also challenged the recovery proceedings and filed Misc. Bench No.4915 of 2001, which was disposed of on 11.10.2001 permitting him to file representation before the District Magistrate. The petitioner after about six months of the auction filed objections against the auction under Rule 285-I of U.P.Z.A. & L.R. Rules, which was registered as Appeal No.397 of 1993 on the file of Commissioner, Devipatan Mandal, Gonda along with delay condonation application. In the said application/ appeal also petitioner described herself as daughter of Mohd. Umar.
The main grievance of the petitioner is that she was not heard. The Commissioner through order dated 19.03.2002 rejected the application on the ground that it was barred by time having been filed on 11.02.2002 and the limitation being only of 30 days. However, it was observed that petitioner could approach the civil court. Against the said order, petitioner filed Revision No.1972 (LR) of 2005-06 before the Board of Revenue, Lucknow. The Board of Revenue dismissed the revision on merit on 15.02.2007, hence this writ petition.
It appears that at the time of recovery, the total dues were Rs.3,56,560/-.
Sale was confirmed on 22.11.2009 and sale certificate was issued on 01.02.2009.
It further appears that other two borrowers Mohd. Salim and Peer Mohd. filed some writ petition in this court in which interim order staying their arrest and attachment of their property was passed as mentioned in the judgment of the Board of Revenue. It is also mentioned therein that Tehsil authorities had recovered Rs.1,40,000/- from Mohd. Salim and Peer Mohd.
Mehfooz Ahmad, respondent No.5, in the sale deed dated 31.05.2001 executed by him in favour of his wife-petitioner showed the sale consideration to be Rs.1,13,000/-.
Learned counsel for the petitioner has argued that notice etc. had not been given to the petitioner, amount was illegally being recovered from her and property was put to auction for recovery of about Rs.3.56 lacs, which was the reserved price, hence it was wrongly sold for Rs.1.25 lacs.
By virtue of Order XXI Rule 54, C.P.C. after attachment of immovable property, judgment debtor is prohibited from transferring the same.
As far as the question of insufficiency of market value is concerned, the petitioner herself had purchased the property less than four months before for Rs.1,13,000/-, i.e. for less than the price for which it was sold in auction.
As far as service of notice etc. upon the judgment debtor is concerned, firstly petitioner cannot have any concern therewith and secondly as mentioned by the Board of Revenue, notices etc. were served upon respondent No.5. As petitioner has purchased the property after attachment hence she cannot raise objections against the auction sale.
Learned counsel for petitioner has cited an authority of the Supreme Court reported in State of U.P. Vs. Swadeshi Polytex Ltd., 2008 (12) SCC 596. However the said authority does not support the petitioner as petitioner was neither borrower nor owner of the house at the time of attachment. In any case in the instant case, due notice was given to respondent No.5 and property was sold in auction for more consideration than the consideration for which borrower himself sold the same to his wife after attachment.
Accordingly, there is no merit in the writ petition, hence it is dismissed.
Order Date :- 05.08.2013
NLY
