V A NARAYANA RAJA Vs. RANGANAYAKI ACHI DIED

JUDGEMENT

(1.) THIS appeal arises out of an order passed by the Court below dismissing an application for setting aside the Court-auction-sale, filed under Order 21, rule 90, Civil Procedure Code, by the judgment-debtor who is the appellant herein.

(2.) THE appellant herein had executed a mortgage of two items of his properties in the year 1963. A suit was filed on the said mortgage in O.S. No. 166 of 1965 in the year 1965. THEre was a preliminary decree passed in that suit on 29th June, 1966 for Rs. 1,23,088.58 with subsequent interest thereon. Later, on 28th February, 1967, a final decree had been passed. An execution petition was filed in E.P. No. 119 of 1967 in August, 1967, for realising the decree amount by sale of the hypotheca. THE said execution petition was originally filed by the decree-holder in O.S. No. 166 of 1965. As the decree-holder died later, his legal representatives were brought on record on 30th November, 1967, and on that day the execution petition was posted to 22nd December, 1967. However, it appears that the execution petition was advanced and taken up on 1st December, 1967, and notice was directed to be issued for 2nd December, 1967. On 2nd December,1967, neither the defendant, nor his counsel appeared and the. Court had directed the sale of the properties to be held on 22nd January, 1968. Accordingly the sale was held on two days on 22nd January, 1968 and to 23rd January, 1968 and item 1 has been sold in favour of the 7th defendant for a sum of Rs. 40,000 and item 2 has been sold in favour of the 6th defendant for a sum of Rs. 73,500. On 10th March, 1969, the defendant filed E.A. No. 157 of 1969 under Order 21, rule 90, Civil Procedure Code, for setting aside the sale. But, notwithstanding the filing of that application for setting aside, the executing Court confirmed the sale. Later, the defendant filed E.A.No. 180 of 1969 for approval, of the security furnished by a third party on his behalf. Since the title deeds have not been produced as directed within time, the said application was rejected. THEreafter, the appellant filed E.A. No. 716 of 1969, for restoring E.A. No. 157 of 1969 for setting aside the sale. That was dismissed for default on 12th September, 1969. THEreafter the appellant filed C.M.A. No. 307 of 1971 before this Court and that was allowed. THE result was that E.A. No. 157 of 1969 was restored to file by the Court below.

(3.) RESPONDENTS 2 and 3 who are legal representatives of the original decree-holder had taken the stand before the executing Court that there was no irregularity in the conduct of the sale held on 22nd January, 1968, and 23rd January, 1968, that the judgment-debtor was not present at the time when the sale was held, that there were only a few bidders and they were not inclined to bid for higher amounts than offered by the auction-purchasers and that there has been due publicity and the properties have been properly valued and as the judgment-debtor was not even present on the date of sale, his petition is liable to be dismissed. The 7th respondent adopted the stand taken by the respondents 2 and 3. The 6th respondent who is the purchaser of item 2. contended before the executing Court that there was no irregularity or fraud in publishing or conducting the sale and that he has purchased the property for his own benefit and not on behalf of anyone else and that the price paid by him was reasonable and proper. The fourth respondent is a subsequent mortgagee of the suit properties and he did not file any counter-statement.