HARNATHA RAO Vs. PARVATHAMMA

JUDGEMENT

(1.) HEARD the learned Counsel for the applicant Sri P. R. Ramesh and Sri M. R, Rajagopal, learned counsel for respondents 2, 3a and 3b and 4.

(2.) THIS revision under Section 115 of code of Civil Procedure arises from the judgment and order dated 16. 12. 1993 delivered by Sri K. M. Murari Mouni, learned Additional Civil Judge, shimoga, allowing the appeal of the judgment - debtor i. e. present respondent No. 3a and B in execution case No. 41/86 challenging the order of the Additional Munsiff, Shimoga, dated 2. 4. 1993 on (A No. 5 under Order 21 Rule 90 r/w Section 151 CPC and Order 21 Rule 66 CPC. The learned Trial Court i. e. , Execution Court rejected the application of the 4th Judgment Debtor taking the view that there was proper sale proclamation and sale warrant. There was valid tom-tom and the value offered is also adequate and sufficient. He held that the 4th Judgment debtor failed to show that there is material irregularity which resulted in substantial injury caused to him by the auction sale held in this case. After having so observed, the learned additional Munsiff dismissed the application and ordered that in consequence of dismissal of i. A. 5, the auction sale held in the case has been confirmed and made absolute. On appeal, the execution courts order has been set aside by the learned Lower Appellate Court and the appeal had been allowed and the sale had been set aside by the Appellate Court. The Court below set aside the sale or two grounds. :that the auction purchaser did not deposit or pay the 3/4th sale consideration as purchase price though provisions of law allowed 15 days time after sale. It opined that in view of the provisions of Order 21 Rule 84 and 85, when the purchaser has not deposited the remaining amount i. e. 3/4th of the purchase price, within prescribed period the purchaser will loose all his rights. He followed the law laid down by the Supreme Court in this connection under Order 21 Rule 84 and 85 in the case of MANILAL MOHANLAL SHAH AND ORS. SYED AHMED SYED mahamad AND ANR. , AIR1954 SC 349 , (1955 )57 BOMLR10 , [1955 ]1 SCR108. The Court below further found in this case that in conducting the sale and issuing the proclamation, the Execution Court had also to follow the mandate of Rule 64 of order 21 of the Code before issuing the sale proclamation and it found that the Execution Court did not comply with that requirement and as such also the sale of the property namely 4 acres 25 guntas of wet land and 1 acre 16 guntas of Sy. No. 25 for recovery of meagre sum of Rs. 2,945. 05 ps. is illegal and without jurisdiction and as such it set aside the sale while allowing the appeal of the judgment-debtor. Feeling aggrieved from the judgment and order of the appellate court, the auction purchaser has come up in revision under Section 115 of the Code of Civil procedure before this Court.

(3.) I have heard Sri P. R. Ramesh Counsel for the revision petitioner and Sri M. R. Rajagopal and sri Rudragowda for respondents. The learned Counsel for the revisionist appellant urged that the Court below acted illegally in setting aside the auction sate that had to be knocked down in favour of the revision-appellant. Sri Ramesh urged that the decision of the Supreme Court in the case of Manilal Mohalal Shah and others did not apply to the facts of the case. Sri Ramesh submitted that suction bid in favour of the, revisionist had been knocked down on 14. 12. 1990 and on the same day the purchaser bidder deposited 25% of the bid amount, and thereafter the fifteenth day did fall on 29. 12. 1990 i. e. during the winter vacation (X mas holidays) as such as purchaser bidder on reopening day i. e. 2. 1. 1997 moved the Court for receipt order being issued so that purchaser could deposit the 3/4 balance of bid amount and the [earned Munsiff ordered issue of receipt on 3. 1. 1991 and the receipt order was issued to the revision petitioner i. e. , auction purchaser on 11. 1. 1991 for Rs. 18,000/- and the auction purchaser did deposit the amount on 11. 1. 1991 and the deposit was well within time as without receipt order deposit could not be made.