RUGMINI AMMA Vs. ABDULLA

JUDGEMENT

(1.) THIS is an appeal by the second defendant in the suit. At the time of admission, notice was issued on the following questions of law.

(2.) THE learned counsel for the appellant did not advance any argument on the above questions. THE main question of law he raised and argued is whether a lessee of a decree- holder auction purchaser can validly resist the claim for restitution by the judgment debtor when the decree on the basis of which sale was effected is subsequently set aside and the general question whether the assignee of the decree holder court auction purchaser will be affected by the subsequent reversal of the decree. THE further question which has arisen in the case is that, in view of the judgment in S. A. No. 482 of 1973 by this court, which remanded the case to the trial court for permitting the plaintiff to amend the plaint as indicated in the judgment and then to dispose of the suit in accordance with law and in the light of the findings and observations in the judgment, whether the appellant can now validly contend that the assignee (lessee) from the decree holder auction purchaser is not entitled to the same protection as that of a stranger purchaser in a judicial sale. I may now at once say that Viswanatha Iyer, J. held in his judgment in S.A. No. 482 of 1973 remanding the case that an assignee from a decree holder auction purchaser is entitled to the same protection as that of a stranger auction purchaser in a court sale.

(3.) IT is axiomatic that in the absence of statutory restrictions courts are inherently vested with the broad discretionary powers with respect to the method and mode of judicial sales, but the legality and the validity of a particular sale depends on the court's power to order sale in that case and in jurisdiction over the subject-matter and the parties. As I said that it is an involuntary sale, the object of which is to procure an amount which is approximately the value of the property in question. In my view, such a sale is a contract in that it is the result of an offer on one part, and its acceptance on the other and there is nothing wrong in considering that the court ordering the sale as the contracting party on the one side and the bidder on the other. IT is plain that the distinctive character of a judicial sale is that it is the end result of a judicial proceeding, it must have the backing and support of a judicial order, decree or judgment directing that the property be sold as distinguished from a judicial assent to the sale of the property under statutory provisions authorising such sale under the supervision of courts or by its direction upon the terms and in the mode providing in certain statutes.