PHILIPOSE KURIAN Vs. BABBARA MARY LOPEZ

JUDGEMENT

(1.) These two appeals are directed against a common order passed by the lower court dismissing the applications filed by the defendant judgment debtor in O.S. No.128 of 1951 on the file of the Kottayam District Court. In execution of the decree in that case five items of immovable properties belonging to the defendant were sold in court auction. These items were bid by the decree holder for a sum of Rs. 31,000/-. The defendant filed an application under O.21 R.90 C. P. C. to have the sale set aside on grounds of material irregularity and fraud committed by the decree holder and which have brought about substantial injury to the defendant debtor. While the inquiry into these allegations was in progress the judgment - debtor was adjudicated an insolvent & his properties became vested in the Official Receiver. The Receiver who got himself impleaded in the enquiry started by the defendant, was allowed to continue the proceedings from the stage at which he was impleaded. The judgment - debtor also filed an application under Act 31 of 1958 to .have the court sale set aside under Clause.3 of S.22 of that Act. Finally both the applications were dismissed. Against that common order of dismissal, defendant has filed C.M. Appeal 32 of 1959 and the Official Receiver has filed C. M. Appeal 39 of 1959.

(2.) The main point urged on behalf of the appellants in both these appeals is that the lower court ought to have found that the court sale was vitiated by material irregularity and fraud and that the defendant has sustained substantial injury as a result of such a sale. On going through the records in the case we are satisfied that there is not much force or substance in this contention. No material defect is pointed out in the proclamation schedule. Notice of the proclamation was accepted by the defendant and even though he applied for time to file objections, he is seen to have given up that idea subsequently. In fact he did not file any objection. The probable price of the properties proclaimed for sale was shown at only Rs. 19,000. The defendant had no case at that stage that this was an under valuation. He got the sale adjourned on a few occasions to enable him to deposit the decree amount. It was because he could not deposit the amount that the properties were finally sold. It is also seen that other decree holders who had to get amounts from this defendant had also intervened and had applied for rateable distribution. Among these decree holders there were banks also. In such a situation it cannot be said that the decree holder auction purchaser would have been able to knock off the properties for a low price. The other creditors would have been on the alert to see that the best price was obtained at the auction. In view of the application for rateable distribution, the auction purchaser had to deposit the sale price in court. These facts and circumstances are sufficient to show that the allegation of fraud and material irregularity in respect of the court sale is baseless.

(3.) Another point urged on behalf of the appellants, is that the lower court erred in dismissing the defendants application to take out a commission to report about the value of the properties covered by the court sale. It is stated that a commission report would have shown that the properties were really worth much more than the price fetched at the auction. At the outset it has to be pointed out that the defendants application for the issue of a commission was a belated one. All the same the court directed the defendant to file the title deeds relating to the properties sold so that the court may be satisfied by prima facie evidence that the allegation of under-sale is well founded. The defendant simply ignored the order of the court and did not care to produce any document. This attitude of his showed the lack of bona fides on his part. The lower court was therefore right in dismissing the belated application for the issue of a commission.