LAKSHMIKUTTY Vs. CHERUCHIKUTTY

JUDGEMENT

(1.) An interesting question of law is raised in this second appeal and civil revision petition which arise out of the same transaction. Before dealing with it we shall record our views on the merits of the case. In execution of the decree in O.S. 1480/1108 on the file of the District Munsiff of Irinjalakuda three items of properties among others were brought to sale and the sale was duly confirmed. At that stage M.P. 705/1121 was presented by the assignee of the third item who had got herself impleaded in the execution proceedings. This was for setting aside the sale. The sale of the property took place on 27.5.1120. The petition to set aside the sale was filed on 4.3.1121. Prima facie therefore the petition not having been filed within 30 days is barred by limitation. But the contention of the petitioner in the courts below was that the sale was vitiated by fraud and material irregularity. According to her the sale proclamation was not duly published as required by law. She was not given any notice of the sale. On the other hand, by the fraud practiced by the decree holders knowledge of the sale was kept from her. When she came to know about the fraud and the sale, she filed the petition within 30 days of such knowledge. She urged in the courts below that although by the decree the third item was ordered to be sold free of encumbrance and out of the sale proceeds a sum of Rs. 2000 odd was directed to be paid in the first instance to her, this material fact was not disclosed in the sale proclamation. Therefore she pleaded that there was fraud in publishing and conducting the sale. All the three items fetched a price of Rs. 300 at the court sale. Over the third item alone there is now a subsisting encumbrance of about Rs. 3000/-. She contended in the courts below that if this encumbrance had been disclosed in the sale proclamation and if she had obtained notice of the sale she would have come forward to prevent the sale of the third item for any amount less than Rs. 3000/- which was due to her. She could have realised this debt by purchasing the property. It is also contended that the court had inherent jurisdiction to set aside the sale in view of the fact that the price realised by the sale was grossly inadequate. A commissioner was appointed for valuing the third item alone within a year after the sale and his report is that it would be worth Rs. 6000. It was contended that making due provision for rise in the price of immovable property in any event the third item would be worth not less than Rs. 3000. There were very strong contentions which could not be overruled and both the lower courts have found on the evidence placed before them, that a case has been made out for setting aside the sale. The finding of the lower appellate court is that there was material irregularity in publishing and conducting the sale and that it is liable to be set aside.

(2.) The District Munsiff although he arrived at the same conclusion with regard to the validity of the sale, held that the application to set it aside since it was presented more than 30 days after the sale was barred by limitation and for that reason he dismissed it. This finding has been reversed by the lower appellate court. In his judgment, the learned Judge does not in so many words say that as a result of the fraud of the decree holders the sale was kept out of the knowledge of the assignee of the third item of property who applied for setting aside the sale. But on reading his judgment, we entertain no doubt that that was the conclusion reached by him. He consequently held that the petitioner who applied for setting aside the sale came to know about the sale only when the amin went to the spot to effect delivery of the third item on 28.2.1121. The petition having been filed on 4.3.1121 was therefore not barred by limitation.

(3.) The appellant in the second appeal and the petitioners in the Civil Revision Petition are the decree holders who brought the three items to sale and purchased all the three items for the ridiculously low value of Rs. 300/-. On their behalf the findings of the court below that the sale is vitiated by fraud and material irregularity and that the owner of the third item was prevented from knowing about the sale by the fraud practised by the decree holders are attacked in second appeal. We have carefully gone through the relevant records and we are satisfied that there is no ground for interference with these findings.