CHINNAMMAL Vs. P ARUMUGHAM

JUDGEMENT

(1.) Special Leave is granted.

(2.) This appeal is from a decision of the Madras High Court which denied the appellants claim for setting aside a judicial sale.

(3.) The facts giving rise to the appeal, as found by the Courts, may be summarised as follows:- Arumugham respondent 1 obtained money decree on the basis of a promissory note from the Subordinate Judge, Salem, in O . S. No. 388/1968. Sethuramalingam the judgment debtor appealed to the High Court but could not get the decree stayed. He could not furnish security for the decretal amount which was a condition for stay. The decree was put into execution notwithstanding the pendency of the appeal. In February 1973, his two items of properties; (i) three houses and (ii) 10.93 acres of land were brought to court sale. They were purchased by Kuppa Goundar, respondent No. 2 for Rs.7550/and Rs. 15,050/- respectively. In October 1975, the High Court allowed the appeal on merits. The promissory note which was the basis of the suit was disbelieved and rejected. The trial court judgment was set aside and the plaintiff was non-suited. Thereupon the judgment debtor moved the executing court for setting aside the sale. He has alleged inter alia, that the sale was vitiated by material irregularities and properties were deliberately sold for under value. The sale was collusive between decree holder and the auction purchaser. The latter was sambandhi of the former and just a name lender. It was also his contention that since the decree has been reversed, the sale should be nullified and restitution should be ordered. The Court rejected all the contentions relating to material irregularities for want of satisfactory evidence. The Court also held that subsequent reversal of the decree could not be depended upon since the sale has been confirmed in favour of the auction purchaser who was a stranger to the litigation. The judgment debtor appealed to the High Court and succeeded at first instance, before learned single Judge. The learned Judge found in effect that (a) the sale was vitiated by material irregularities resulting in fetching a low price to properties; (b) the decree holder and .auction purchaser are close relatives and the sale seems to be collusive; and (c) after the Court sale they seemed to have entered into an agreement for selling the second item of properties for Rs. 96,000/-. With these conclusions the sale was set aside. But on appeal, the Division Bench of the High Court has expressed contrary views on all those points and reversed the decision of learned single Judge.