RAMAPPAALAGOUDA PADDI Vs. SOLABAYYA SHIDDAYYA GUGIKOLLAMATH

JUDGEMENT

(1.) this civil revision petition assails an appellate Order of the learned civil judge, gokak in miscellaneous appeal No. 8 of 1982. The facts of the case make extremely distasteful reading insofar as the litigation concerns payment of maintenance amount to an aged wife. The litigation started in the year 1974 and it is unnecessary to recount the background of what happened except to record that the husband kept on litigating in different courts instead of paying the amount to the wife and the culmination of all these efforts was that the second respondent-wife was required to finally file an execution proceeding No. 8 of 1980 against her husband in the court of the principal munsiff, gokak. She was required to follow this up with an application for attachment of the properties because even though the maintenance awarded to her was a paltry sum, it had aggregated to around Rs. 10,000/-. Despite the attachment of the three properties, on 1-2-1980 the amount was still not forthcoming from the husband and ultimately an application for a sale warrant and proclamation was filed on 30-9-1980. This application was adjourned on three occasions and ultimately on 30-10-1989 the court passed orders for a proclamation and ultimately, the sale was fixed for 1-1-1981. This was thereafter postponed to 5-1-1981 on which date the auction purchaser who is the petitioner before me submitted his bid for Rs. 35,100/- in respect of property bearing survey No. 416/2. This being a court auction which took place in the evening of that day the matter was placed before the court for acceptance of the bids on 6-1-1981 when the court accepted the present petitioner's bid. He deposited the 25% against the amount on the same day and the balance amount within the specified time. On 4-2-1981 the husband who was the judgment-debtor filed an application under Order 21, Rule 90 of the C.P.C. for setting aside the sale. This application was finally disposed of by the trial court on 31-3-1982 when the learned munsiff dismissed the application holding that no case had been made out for setting aside the sale. The judgment-debtor thereafter took the matter in appeal and he filed miscellaneous appeal No. 8 of 1982 before the court of the learned civil judge, gokak and this appeal was finally disposed of on 20-9-1988 on which date the appeal was allowed. The appeal court set aside the sale and directed that the matter be remanded to the trial court for a fresh decision in execution proceeding No. 8 of 1980 and for execution of the decree in respect of whatever amount may be outstanding against the judgment-debtor. The only party to have challenged the appellate Order is the auction purchaser who is the petitioner before me who contends that he is seriously affected by the Order and that it is liable to be set aside.

(2.) the first contention raised by the petitioner's learned Advocate is that the appeal court has set aside the sale on the basis of certain so called irregularities and the learned Advocate submits that none of these are of any consequence nor are they of a sufficiently grave character as to come within the definition of the term 'material irregularity'. Relying on the provisions of Order 21, Rule 90, the learned Advocate has advanced a two-fold submission in law insofar as she first submits that the irregularity must be extremely serious in nature so as to virtually vitiate the sale and that it only then can it be characterised as a material irregularity. Simultaneously she has submitted that the law envisages that a sale shall not be set aside unless the party challenging it satisfies the court that substantial prejudice has been caused. The submission is that merely because some technical mistakes may be on record or some minor procedures may not have been complied with, a court is precluded from setting aside the auction sale because third party rights are created and it is only in cases of utmost seriousness where real prejudice is demonstrated, that the sale will be interfered with by the court. In this context, the learned Advocate has placed strong reliance on a decision of the Supreme Court in the case of dhirendra nath gorai, subal Chandra Nath Saha and others v. Sudhir Chandra Ghosh and others. The apex court had occasion to consider the principles laid down in a long line of decisions starting from Vellayan Chettiar and others v. Government of the Province of Madras and another and the court held that substantial injury will have to be proved by the party claiming the revocation of the sale deed and that it will have to be demonstrated that the irregularities were of a sufficiently grave character which resulted in such injury. Petitioner's learned advocate, relying on the observations of the Supreme Court in this decision points out that the judgment-debtor as had happened in the case before the Supreme Court did not raise any objections of any type even after the proclamation and at the time when the sale took place. The Supreme Court did construe such conduct as being a complete waiver and held that the party was thereafter disentitled from raising technical pleas and applying for the setting aside of the sale. It is pointed out to me that in the present instance, though an application was filed for setting aside of the sale, no material irregularities of any type has been demonstrated and more importantly, the serious injury or prejudice that has resulted to the judgment-debtor has not been allegedly set out. Learned Advocate also relies on the observations of the trial court wherein the learned judge has recorded the fact that the judgment-debtor did not lead any evidence but in addition to that, he has not produced any material of any type in Order to satisfy these two requirements. The contention raised therefore is that the decision of the trial court in refusing to set aside the sale was perfectly justified. In this context, the petitioner's learned Advocate has drawn my attention to two more decisions which amplify the position in law. The first of them is a decision of the Supreme Court in Laxmi Devi v. Mukand Kanwar and others, wherein the Supreme Court reiterated the position that it is insufficient to allege that substantial injury has occurred but that it is the requirement of law that it must be established. In a later decision of the Supreme Court in Jaswantlal Natvarlal Thakkar v. Sushilaben Manilal Dangarwala and others, the Supreme Court had occasion to further crystallise the principle by laying down that irrespective of the injury being pleaded, that it must be specifically proved. The submission before me is that even though some irregularities, none of which are of any consequence, were alleged, that nothing was proved or established before the trial court. In passing, I need to record that the entire challenge in the application consisted of so called procedural irregularities namely the fact that the sale was postponed from the 1st to the 5th and that no fresh proclamation was issued and secondly that even though the bid was made by the auction purchaser on 5-1-1981, that the same was accepted by the court on 6-1-1981 which was not on the same day or immediately. The submission is that none of these grounds were of any consequence and as has happened in the course of the earlier litigation from 1974 to 1981, that this was one more attempt to deprive the wife from receiving the maintenance amount that was due to her.

(3.) in passing, I need to refer to two other aspects of the matter one of them being that the appeal court has interfered with the decision on the ground that the purchaser is not an agriculturist and that his occupation was given as student. With regard to this aspect of the matter, the law is virtually concluded by the decision of this case in H.N.Vinayaka and others v. Firm of H.Venkatasastry and sons wherein the court has very clearly held that such a question namely as to whether the purchaser is an agriculturist or not cannot be taken up in proceedings under Order 21, Rule 90. This virtually concludes that point. Another ground on which the appeal court has interfered is that the judgment-debtor had subsequently paid an amount of Rs. 6,240/- and the appellate judge has taken the view that part of the decree was satisfied and that this aspect of the matter was not taken into account by the trial court. I shall dispose of this point straightaway because the petitioner's learned Advocate on the basis of the record has demonstrated to me that this amount of Rs. 6,240/- was undoubtedly deposited by the judgment-debtor before the trial court which was executing the decree but that this was done long after the sale had in fact taken place and that therefore it could have no bearing whatsoever on the validity of the sale. At the very highest, it would be a matter of accounting with regard to how much of the sale proceeds should be paid over to the decree-holder and how much to be refunded to the judgment-debtor. In any event, the petitioner's learned Advocate has drawn my attention to a decision of the Privy Council in Nanhelal and another v. Umrao Singh, wherein the privy council has clearly laid down that amounts paid at a later date cannot affect the validity of a concluded sale. The rationale behind this view is that if the sale creates third party rights or interests, that these cannot be taken away merely because the judgment-debtor at a subsequent point of time comes forward with the whole or part of the decretal amount. The petitioner's learned Advocate therefore submitted that the appellate court has acted in breach of the well-settled principles of law and that this court in exercise of its revisionary powers must interfere with that decision.