TIPPAMMA Vs. ANNARAO

JUDGEMENT

(1.) CIVIL Revision Petition Nos. 4 to 6 of 1992 arise from the judgment and decree dated 21-12-1991 passed by Sri T. Mahesh Hegde, II Additional district Judge, Dharwad, whereby the learned District Judge, first Appellate Court, allowed Miscellaneous Appeal No. 26 of 1986 and set aside the Trial Court's order passed in Miscellaneous Case No. 11 of 1964, dated 11-4-1986 on the file of the Principal Civil Judge, Hubli, dismissing the, application filed by the judgment-debtor under Order 21, rule 90 of the CPC and set aside the Court sale held on 28-9-1994 in special Darkhast No. 6 of 1962.

(2.) THE decree-holder obtained a decree in Special Suit No. 24 of 1954 on the file of the Civil Judge, Hubli, against the judgment-debtor, his four sons and others. A preliminary decree was passed on 18-1-1958 and a final decree was passed on 13-9-1961. Thereafter, the decree-holder filed the execution case against the judgment-debtor, his sons and others in Special Dharkhast No. 6 of 1962 for the recovery of Rs. 18,240/- 2 annas and 8 paise by sale of the mortgaged property, viz. , CTS Nos. 4617 and 4618 of Ward No. I of Hubli city. In the course of the execution proceeding, these properties were brought to sale and CTS No. 4617 was sold on 28-9-1964 in favour of the auction purchaser for Rs. 61,500/ -. The sale was sought to be set aside on the ground of fraud and material irregularity in the conduct of the sale. The applications filed by the judgment-debtors for setting aside the sale were dismissed by the Civil judge, Hubli, by his order dated 22-1-1965. The correctness of the judgment of the Civil Judge was challenged by the judgment-debtors, who are respondents in these petitions, by way of Miscellaneous Appeal Nos. 7 and 8 of 1965 before the First Additional District Judge, Dharwad. The learned Additional District Judge found that there was some material irregularity in the conduct of auction sale, but dismissed the appeals on the ground that the judgment-debtors failed to establish that there were material irregularities in publishing and conducting the sale and held that no substantial injury was caused to the judgment-debtors. Accordingly, he dismissed the Miscellaneous Appeals No. 788 of 1965 on 16-9-1969. Aggrieved by that order, the judgment-debtors preferred two Civil revision Petition Nos. 962 and 964 of 1971. This Court disposed of those revision petitions by upholding the finding recorded by the learned I additional District Judge that there were material irregularities in publishing and conducting the sale, but set aside the finding that no substantial injury was caused to the judgment-debtors and others and remanded the matter to the Civil Judge, Hubli, for consideration of the question afresh as to whether the judgment-debtors and others had sustained substantial injury by reason of irregularities alleged, after giving opportunity to the parties to lead evidence as per the order dated 6-7-1971. After remand, the Execution Court again tried the matter and by its order dated 21-12-1991 held that the judgment-debtors have failed to prove, establish and show that the judgment-debtors suffered substantial injury on account of said irregularities as per the material placed on record. It also held, as had been held earlier, that the sale price of the property in question for Rs. 61,500/- was adequate with reference to the year 1964. After recording thai finding, it rejected the application filed under Order 21, Rule 90 of the CPC. Feeling aggrieved by that order of the Execution Court, the judgment-debtors and others filed Miscellaneous Appeal No. 26 of 1986, before the Court below. The lower Appellate Court considered the entire material on record and held that the Civil Judge has rightly held that the price fetched in the auction of the property in execution of decree in O. S. No. 24 of 1954 is quite adequate and has rightly been held that it cannot be said that the price fetched is inadequate. The Court below held that encumbrances to which the property has been subjected were not mentioned in the sale proclamation as required under Order 21, Rule 66 (2) (c) of the CPC. The Court below observed that R. S. Mattikoppa and Umanabai had recovered Rs. 22,000/- and Rs. 15,000/- respectively (in all Rs. 37,000) out of the auction amount of Rs. 61,500/- and the decree-holder has received only Rs. 29,000/ -. He has also further observed that because of the defects in the sale proclamation, i. e. , non-mentioning or non-showing the encumbrance, and consequential material irregularity in publishing the same, the auction purchaser is not and will not be liable to discharge the encumbrance. Had the encumbrance on the property been mentioned in the sale proclamation, the sale in favour of the auction purchaser would have been subject to the encumbrance on the property, and the auction purchaser would have been subject to the encumbrance on the property, the auction purchaser would have been liable to discharge those encumbrances. It held therefore that the judgment-debtor has suffered loss of rs. 32,500/ -. Without disclosing the encumbrance, the property was sold for Rs. 61,500/- and therefore loss of Rs. 32,500/- has been caused to the judgment-debtor on the ground of non-disclosure of encumbrance while publishing the sale proclamation. Having recorded this finding, the court below i. e. , Appellate Court allowed the application filed by the judgment-debtor and set aside the sale under Order 21, Rule 90 of the cpc.

(3.) THE learned Counsel for the parties pointed out that Umnabadi had realised only Rs. 9,515-58. The figure given by the learned Counsel is taken as correct as there is a mistake in this regard in the order of the learned Civil Judge. Again I have to repeat that R. S. Mattikoppa recovered only Rs. 22,896-77 and Umanabai recovered only Rs. 9,515/- and the decree-holder recovered only Rs. 29,114-60. In total, according to the calculation, Rs. 61,498/- had been paid off. No doubt, the fact reveals that there were encumbrances on the property in respect of the mortgage debts due to R. S. Mattikoppa, Umnabai, M. D. Mestri and K. S. Karabi, in all amounting to Rs. 2,00,000/ -. M. D. Mestri has not executed the decree. So also, K. S. Karabi has also not got executed the decree so far, though an order is in his favour and he has died.