KARNATAKA BANK LTD Vs. K SHAMANNA

JUDGEMENT

(1.) The above appeals are filed against the orders passed on lAs. 10 and 11 in Execution No.711966 on the file of the Civil Judge, Bangalore City, Betting aside the sale of a house belonging to judgment debtor No.2. The sale was held on 22-11-1966,

(2.) In the said execution proceedings the decree holder sought to execute a money decree passed in OS. 79 62 on the file of the District Judge, Bangalore. Under the decree the judgment debtors, K. Shamanna and Lakshmamma, were jointly and severally liable to pay the amount due under the decree. It may be mentioned here that the said decree was a consent decree. Under the decree the defendants were permitted to pay the decretal amount in four equal instalments with a default clause stating that in the event of any two instalments being in default, the entire amount would become due. The judgment debtors did not pay the decretal amount in accordance with the decree. The decree holder, therefore, sued out execution to realise the amount.

(3.) The execution application was filed on 30-4-1966. Notice were issued to judgment debtors 1 and 2. The judgment debtors filed objections to the execution on 1-6-1966. The case was posted for evidence to 3-6-1966. On that day, the judgment debtors and their Counsel were absent. The executing Court held that there was no substance in the objections and over-ruled the same. It, therefore, issued sale notice for selling the property belonging to judgment debtor No.2. On 8-7-1966, IA.1 was filed under S.151 CPC. for setting aside the order dt.3-6-1966 by which the Court over-ruled the objections. The Court ordered that the ex-parte order would be set aside and the judgment debtors would be heard provided a sum of Rs.25 was paid by way of costs to the decree holder. The judgment debtors did not pay the costs and therefore on 29-7-1966 the contentions of the judgment debtors were again over-ruled. On 26-9-1966 the decree holder filed IA. 2 for selling the property at the spot and it was allowed. On 17-11-1966, IA.5 was filed on behalf of the judgment debtors requesting the Court not to publish the notification of sale regarding the sale of the property in a regional newspaper. This application was allowed. On the same day, another application i.e. IA.6 on behalf of the judgment debtors was filed requesting the Court to notify in the sale proclamation that the property was worth Rs. 1,25,000 for the reasons mentioned in the affidavit accompanying IA.6, but the same was rejected. The date of sale of the property was fixed as 22-11-1966. On 21-11-1966, the day before the date fixed for the sale, IA.7 was filed on behalf of the judgment debtors requesting the Court to postpone the sale. On the same day IA.8 and IA.9 were filed by the judgment debtors. Under IA.8, the judgment debtors requested the Court to set aside the order dt.28-7-1966 over-ruling their objections and to again hear their objections to the execution petition. IA.9 was filed to hear the objections of the judgment debtors on the same day. The Court did not pass any orders on these applications on that day. The sale was held on 22-11-1966 at the spot. It was submitted on behalf of the judgment debtors on 25-11-1966 that they would not press IA.7. It was accordingly dismissed. On 9-12-1966 IA.10 was filed by the judgment debtors under Or.21, R.90 CPC. for setting aside the sale. During the pendency of the said petition, the second judgment debtor died. After her death the legal representatives of the second defendant was brought on record. They filed I A. 11 raising certain objections with regard to executability of the decree. These two applications i.e. IAs. 10 and 11 were taken up together. The lower Court allowed IAs. 10 and 11 and set aside the sale held on 22-11-1966. Aggrieved by the order of the lower Court on IAs.10 and 11, the decree holder has filed the above appeals. Since some of the objections raised fall outside Or.21, R.90 CPC., the decree holder has chosen to file Ex. First Appeal under' S.47 read with S.96 CPC. The Misc. First Appeal is filed against that part of the order falling under Or.21, R.90 CPC. by the decree holder