SIDDAPPA Vs. S MARIYAPPA

JUDGEMENT

(1.) petitioner is the auction purchaser. The 3rd respondent is the decree-holder. The rest of the parties are either judgment-debtors or his legal representatives.

(2.) the decree-holder obtained a money decree and inexecution of the same the property in question was brought to sale. The sale in the spot was on 23-6-1982. The final bid was offered in the court precinct on 24-9-1983. The sale was for Rs. 1,500/- subject to an encumbrance of Rs. 7,000/-. The sale was confirmed on 29-6-1985.

(3.) miscellaneous No. 17 of 1986 was filed by the judgment-debtors on 3-9-1986. The said petition was purported to be under section 47, c.p.c. questioning the sale held in execution of the decree and the confirmation of the sale. The judgment-debtors contended that the decree-holder had filed a suit in o.s. no. 234 of 1974 and execution no. 104 of 1978 and the suit was for arrears of interest only arising out of simple mortgage. They contended that such a decree cannot be obtained by splitting up the mortgage and therefore the mortgage property cannot be sold by executing the decree in view of order 34, rule 14, c.p.c. and section 67 of the transfer of property act. However, this contention was given up before the lower court, as is clear from a reading of the order under revision. This apart, this plea was raised certainly out of desperation and not at a proper stage. Sri m. Papanna, learned counsel for the petitioner, brought to my notice that such a plea was raised even in the earlier execution proceedings and the same was negatived on 7-4-1982. Obviously, because of this the plea was not pursued before the court once again, as is clear from the order under revision, as already noted.