LAXMI DEVI Vs. MUKAND KAN WAR

JUDGEMENT

(1.) This appeal arises out of an application made by respondent No. 1. Smt. Mukand Kanwar, challenging the validity of an auction sale held on the 14th May, 1954 in execution of a money decree passed in favour of Ratan Lal Dani, Secretary, Hindu Charitable Aushdhalya, Ajmer, respondent No. 2, and against Umrao Mal, respondent No. 3. The property sold at the auction sale is "old Daikhana" at Ajmer. On the 24th June, 1950, Umrao Mal who was the owner of the property, mortgaged it to the appellant Laxmi Devi. Later, respondent No. 2 obtained a money decree against respondent No. 3 for a large amount, and in execution of this money decree he brought the property in question to sale. Auction sale was accordingly held on the 14th May, 1954, and the appellant purchased the property subject to the pre-existing mortgage in her favour. The amount due under the mortgage was Rs. 33,264/. and as auction purchaser, the appellant paid Rupees 2,800/- whereby she purchased the equity of redemption vesting in respondent No. 3, the judgment debtor. It is the validity of this sale that is challenged in the present proceedings.

(2.) Long before the mortgage was executed, respondent No. 3 had executed in favour of his mother, respondent No. 1, a document whereby her maintenance was guaranteed. This document had created charge over certain properties belonging to respondent No. 3. On the strength of this document, respondent No. 1 sued respondent No. 3 (civil suit No. 233 of 1952). In this suit, she claimed arrears of maintenance and asked for a declaration that the properties specified in the plaint, which were the same as the properties covered by the previous agreement between the parties, were subject to a charge for her maintenance. The trial Court gave her a decree for arrears of maintenance, but declined to make the declaration as to charge claimed by her. This decree was pronounced on the 31st July, 1952. Against this decree, respondent No. 1 preferred an appeal (No. 80 of 1952) to the Judicial Commissioner, Ajmer. Her appeal succeeded and the charge over the properties was declared in her favour. This decision was pronounced on the 10th February, 1954.

(3.) After the auction sale was held on the 14th May, 1954, it was challenged by two separate applications, one was made by respondent No. 3, the judgment-debtor, on the 28th June, 1954, and the other by respondent No. 1 on the same date. Both these applications were made under O. 21 R. 90 of the Code of Civil Procedure. The application made by respondent No. 3 was dismissed on the 30th April, 1955, while the application made by respondent No. 1 went to a trial, the Executing Court which heard this application tried three issues. The first issue was whether the sale had been vitiated by any irregularity as required by O. 21 R. 90. The second was whether respondent No. 1 was a person whose interests had been affected by the impugned sale; and the third was whether the irregularity alleged by respondent No. 1 had caused substantial loss to her. All these issues were decided in favour of respondent No. 1. In the result, the impugned sale was set aside on the 4th May, 1955.