K SURESH BABU Vs. K BALASUBRAMANIAM

JUDGEMENT

(1.) This is an appeal against the order of the X Assistant Judge, City Civil Court, Madras dated 14th August, 1978 made in E. A. No. 1435 of 1977 in K P. No. 391 of 1975 in 0. S. No. 174 of 1973. E. A. No. 1435 of 1977 was filed for setting aside the sale which was held on 25th January 1977 in execution of a decree obtained in 0. S. No. 174 of 1973. The case of the petitioner in the execution application, who was the judgment debtor, was that the purchase at the court auction was a benami purchase by the decree holder and therefore the sale should be set aside. He also put forward the contention that the property was worth Rs. 1,50,000 but it was sold only for an indequate price of Rs. 30,150, and thereby he sustained a substantial injury. The learned X Assistant Judge, City Civil Court, Madras, recorded a finding that the purchase at the court auction sale was benami one by the decree holder. Having held so, in respect of the question whether the property fetched an adequate price or not, he did not render a d6finite finding. However, he did say in his order that the judgment-debtor sustained substantial injury by reason of irregularity in the conduct of the sale. On his finding that the purchase was a benami one by the decree-holder and no permission as contemplated by Order 21, Rule 72 (1) of the Schedule to the Civil Procedure Code had been obtained and the judgment debtor sustained substantial injury he set aside the sale. It is against this order setting aside the sale the present appeal has been filed by the auction purchaser.

(2.) When the appeal came up for hearing before a Division Bench of this court, the learned counsel for the appellant, having regard to the evidence available, did not challenge the findings that the purchase was benami for the decree holder and no permission contemplated by Order 21, Rule 72 (1) of the Civil Procedure Code was obtained. However, he contended that the learned Judge, not having given a definite finding on the adequacy or inadequacy of the price fetched at the court auction sale, was not justified in giving a finding that the judgment debtor sustained a substantial injury and a finding that the judgment debtor sustained substantial injury as a result of the decree holder not obtaining permission contemplated under Order 21, Rule 72 (l) of the Civil Procedure Code, is necessary for setting aside the sale. In Support of this contention, the learned counsel for the appellant relied an a Bench decision of this court in GunduVenkatalingam v. Kantheti Venkata Ranganayakulu, ILR (1955) Mad 675. The said decision certainly supports the contention of the learned counsel for the appellant, namely, that even when a decree holder or his benamidar purchases the property in court auction sale, without obtaining the permission of the court under Or. 21 R. 72 (1) C. P. Code, the sale cannot be set aside unless it is established that the judgment debtor or any person interested in the property sustained a substantial injury. But the Division Bench took the view that having regard to the language of Order 21 Rule 72 (3) C. P. Code, contrasted with the language of Order 21, Rule 90, C. P. Code, the above said Bench decision required reconsideration and. therefore directed the matter to be placed before a Full Bench and that is how the matter is before us now.

(3.) We have now to Proceed on the basis that there has been a violation of Order 21, Rule 72 (1) C. P. Code, inasmuch as without obtaining the permission of the court the property has been purchased in court auction benami for the benefit of the decree holder and the judgment debtor filed the application to set aside the sale on that ground. The question that requires to be considered is whether the judgment debtor in addition to proving that the purchase at the court auction sale was benami for the decree holder should further prove that as a result of the decree holder not obtaining the permission contemplated by Order 21, Rule 72 (1) C. P. Code, he sustained substantial injury.