VALIVETY RAMAKRISHNAIAH Vs. TOTAKURA RANGARAO

JUDGEMENT

(1.) We have heard the arguments advanced on behalf of the appellant and after considering the facts and circumstances of the case we have dismissed the appeal by our order dated 20-8-1986. The reasons for the dismissal of the appeal are stated herein below. This appeal on special leave arises out of the judgment and order dated 25th October, 1976 in Letters Patent Appeal No. 3 of 1976. The judgment-debtor made an application for setting aside the sale held on 17-4-1972 under Order 21, Rule 90 of the Code of Civil Procedure alleging, inter alia, that there was no proper sale proclamation drawn up as it was stated therein that the sale of the attached property will be subject to decree in O.S, No. 282/68, that the valuation put on the sale proclamation was low, that is, Rs. 15,000/-for each lot and the judgment-debtor's valuation of the property of Rs. 1,40,000/-was not put in and for this material irregularity the property was sold at a low price of Rs. 24,000/-. It was further alleged that the decretal amount for which the attached property was put to sale was about Rs. 7,660/-and costs Rs. 846.75 paise and one fourth portion of the property would have been sufficient for fetching that amount instead of putting 1/2 portion of the property to sale. The Trial Court by its judgment and order dated 26th August, 1974 dismissed the application which was registered as E.A. No. 849/79 and held that there was no material irregularity in the matter of drawing of the sale proclamation and also in publishing the same. It was further held that in the sale proclamation both valuations put by the decree-holder as well as by the judgment-debtor were mentioned and the valuation made by the Amin of the Court was also put in there as required under the provisions of Order 21, Rule 66 of the Civil Procedure Code. The objection filed by the judgment-debtor that the property should be made into four sub-divisions and they will be put to auction separately and the statement in the proclamation that it is subject to the decree in O.S. No. 282/68 should be deleted were partly allowed by directing deletion of the property subject to charge but rejected the other objection regarding dividing the property in four lots and putting each lot to auction one after another. Thereafter another sale proclamation was drawn up by the decree-holder and it was filed pursuant to the order dated 14-2-1972. The attached property was shown in the sale proclamation in two parts each part being valued at Rs. 15,000/- as per order dated 14-2-1912 'on the objection petition filed by the judgment-debtor being No. 214/72. It was further held that the judgment-debtor was a pleader's clerk and on some plea or other he tried to drag on the proceedings. He made applications for time for putting in the decretal amount twice but he did't put in the decretal amount though time was granted and sale was adjourned., Moreover against the order passed on his Objection Petition No. E.A. 215/72 he did not file any appeal. It was further held that there was no irregularity in publishing and conducting the sale and in the sale proclamation Ex. C-1 the decree-holder did not show the sale subject to charge of any decree in O.S. No. 282/68. This fact is also evident from Ex. A-7 the publication of the sale in paper 'Jagrithi'. The, sale proclamation was correctly made. It was further held that the judgment-debtor at the time of the sale drew the attention of the court to Ex. C-2 wherein it was noted that the decree is subject to a charge in O.S. No. 282/68. This was held to be due to some subsequent interpolation made in Ex. C-2. Moreover as soon as it was defected the court explained to the bidders present on the date of sale that there was no charge on the property and the property put to sale was free from charge. The bidders were not misled and the sale fetched the proper price for 1/2 portion of the property at Rs. 24,000/-. It has also been held that none of the witnesses examined on behalf of judgment-debtor stated that they were misguided by the proclamation of sale. It was further held that the judgment-debtor failed to establish that he suffered any substantial injury as a consequence of the alleged irregularity. The application was, therefore, rejected.

(2.) An appeal was preferred against this order before the High Court of Judicature at Andhra Pradesh and it was registered as appeal No. 434/74 same objections were also raised and contended before the High Court. On 18th December, 1975 the High Court held that the attached property was sold in two items as per order of the Court and negatived the objection of the judgment-debtor, appellant. It was also held that the judgment-debtor's prayer for making the property into four plots was rejected by order dated 7th February, 1972 and it was held "that it cannot be done at this stage, as boundaries were given for the two portions jointly." It has been further held that it is a matter of discretion for the Court to exercise under 0. 21, R. 64 whether the property will be put to auction in two lots or four lots. The property was put to auction in two lots and as soon as one lot fetched Rs. 24,000/- the Court directed stoppage of sale of the second item. Therefore there was no material irregularity either in publishing or conducting the sale on this ground. It was further held that at every stage of the proceedings the judgment-debtor was present and at no stage he objected to the fact that the valuation mentioned by him was not given in the sale proclamation. It has been further held that in Ex. A-7, that is, the publication of the sale proclamation in paper 'Jagrithi' the valuation of items Nos. 1 and 2 was given as Rs. 15,000/- for each lot, Amin's valuation was also put therein as well as of the valuation of judgment-debtor. There was no material irregularity and even if it is assumed that there was irregularity, no substantial injury has been caused to the judgment-debtor. On a scrutiny of Exs. C-2 and C-3 it was found that the printed portion on the other side of the page, wherein it was written with a ball point pen with a different ink that the decree-holders value is Rs. 3,000/-subject to the 0. S. No. 282/68 though in the Scheduled portion of Ex. C-2 in column 5 it was specifically mentioned that there were no encumbrances was an interpolation. It was also held that as the Court sale fetched a reasonable price the judgment-debtor has not suffered any substantial injury. The appeal was, therefore, dismissed with costs. In the Letters Patent Appeal also the Court after considering the facts and circumstances of the case and hearing the parties dismissed the appeal and. affirmed the judgment.

(3.) On hearing the learned counsel for the appellant and on going through the papers we are constrained to hold that there has been no irregularity far less any material irregularity in publishing and conducting the sale and bidders were not misled by it. The ale proclamation was drawn up by the decree-holder in accordance with the provisions of Order 21, Rule 66 of Civil Procedure Code showing therein the property in two portions and each portion was valued at Rs. 15,000/-. It was not mentioned therein that the property was subject to charge of decree in O. S. No. 282/68. This is evident from the sale proclamation Ex. C-1 and also the sale, proclamation that was published in paper 'Jagrithi' Ex. A-7. This proclamation was quite in accordance with the order passed by the Court on 14-2-1972. It appears that in Ex. C2, that is, the service copy of Istihar it is noted that it is subject to the charge of the decree in O. S. No. 282/68 and this noting has been made with a ball point pen with a different ink. It has been rightly found by the lower appellate Court that this is an interpolation made in the said service copy of the sale proclamation.