TIMMALAPALLI VIRABHADRA RAO Vs. SOKALCHAND CHUNILAL

JUDGEMENT

(1.) These are two petns. to revise the order of the Disk J., Eluru in C. M. A. No. 123 Of 1947 & C. M. A. No. 25 Of 1948 on his file.

(2.) The more material facts are these. On 11-3-1946 the Official Receiver sold the properties of the insolvent in I. P. Nos. 21 & 22 of 1933 on the file of the Subordinate Judge, Eluru. One Virabadra Rao the petnr. before me was the successful auction purchaser, the amount of his bid being Rs. 15,500. On 29-31946 two creditors of the insolvent named Bapiraju & Viraswami filed I. A. No. 820 of 1946 before the Subordinate Judge, Eluru, praying that the sale be set aside. One Chunilal, another creditor of the Inslvt., probably entertained fears that Bapiraju & Viraswami might not prosecute their petn. diligently & so on 2212-1946 he applied to be added as the 3rd petnr. in I. A. No. 320 of 1946. The petn. which Chunllal so filed was numbered as I. A. No. 44 of 1947. On 11-21947 this I. A. No. 44 of 1947 was dismissed because even though his vakil was present the petnr. was absent & no evidence was adduced in support of the allegation that the petnrs. in I. A. No. 320 of 1946 were not prosecuting their petn. with diligence. On 8-4-1947 I. A. No. 320 of 1946 was withdrawn & dismissed. Chunilal thereupon filed two appeals before the Dist. Ct. One numbered as C. M. A. No. 123 of 1947 was against the order dismissing I. A. No. 320 of 1946 & the second numbered as C. M. A. No. 25 of 1948 was against the order dismissing his own appln. L A. No. 44 of 1947.

(3.) There is a certain amount of apparent--but as finally appears over apparent- controversy about what happened in the Dist. Ct. Nevertheless certain facts are not disputed. The learned Dist J. heard arguments in the appeals on 22-6-1949 & reserved judgment. Either on 24th or on the 25th June--the difference between these dates is immaterial--the appeals were taken up in order to ascertain whether the applt. or anyone else was willing to deposit Rs. 25000 as his initial bid. Time was extended once & again till 12-8-1949 when one Vagu Venkataswami stated to be the son-in-law of one of the insolvents deposited a sum of Rs. 6250. The learned Dist. J. made an order on 12-8-1949 of which the first para, runs as follows: "In view of the deposit made here to prove the bona fides of the contention of the applt. that the sale of the property in question was not for proper price both sides agree that the applt. should be allowed to be added as a party & given an opportunity to convince the lower Ct. that the sale is liable to be set aside on this ground. Both sides further agree that I. A. No. 320 of 1946 on the file of the lower Ct should be restored to the file of the lower Ct. for disposal on merits. In dealing with it the lower Ct. will take into consideration that fact that there is a bidder who is prepared to start his bid with Rs. 25000 as the upset price. Both these appeals are allowed." On behalf of Virabhadra Rao, the petnr. before me, it was strenuously Timmalapalli Virabhadra Rao vs. Sokalchand Chunilal and Ors. (04.08.1950 - MADH... Page 3 of 6 contended that on neither of the two points set out in the order of the learned Dist. J. now complained of was there the agreement that he asserts there was. An affidavit of the learned vakil who appeared for the petnr in the Dist. Ct. was filed in support of the contention. It is stated that it was only because this affidavit was filed that these civil revn. petns. were admitted at all. When notices were issued to the opposite side after the admission of these two revn. petns. another affidavit from the advocate who had been appearing for Chunilal in the Dist. Ct. was also filed. Reading these two affidavits together it appears to me to be reasonably clear that both the parties agreed before the learned Dist. J. that I. A. No. 320 of 1946 on the file of the Sub Ct. should be remanded to that Ct. for disposal on the merits, but, it was certainly not agreed that Chunilal should be added as a party.