V A NARAYANA RAJA Vs. RENGANAYAKI ACHI DIED

JUDGEMENT

(1.) This is a petition by the appellant in C. M. A. No. 532 of 1977 pending before this court Under O. 34, R. 5, read with S, 151, C. P. C to permit the petitioner to deposit a sum of Rs. 2, 67, 974 - 64 into court

(2.) The circumstances under which the said application has been filed may briefly be stated. The appellant had executed a mortgage of two items of properties in the year 1963. A suit O. S. 166 of 1965 was filed on the said mortgage and there was a preliminary decree, in that suit on 29-6-1966 for Rs. 1,23,088.58 with subsequent interest thereon. Later on 28-2-1967, a final decree had been passed. An execution petition was filed in E. P. No. 119 of 1967 for realising the decree amount by sale of the hypotheca. As the decree holder died later, his legal representation came on record on 30-11-1967. The said execution petition was posted for disposal on 22-12-1967. However, it was advanced and taken up on 1-12-1967 and posted to 2-12-1967, when the executing court directed the properties to be sold on 22-1-1968. The sale was actually held on 23-1-1968 and item I was sold in favour, of the 5th respondent in the civil miscellaneous appeal for a sum of Rs. 40,000 and item 2 was Sold in the name of the 6th respondent in the civil miscellaneous appeal, for a sum of Rs. 73,500. On 10-3-1969. the defendant, the judgment debtor field E. A. 157 of 1969. under O. 21. R 90 C.P.C. for setting aside the sale. Not-, withstanding the filing of the application, the executing court had confirmed the sale.

(3.) In E. A. 151 of 1969, the judgment debtor contended that the Court auction purchasers of the two items of properties were close relations of the decree holder, and therefore, the purchase should lie deemed to be by the judgment debtor without obtaining leave to bid and that, in addition to that, there was irregularities in the conduct of the sale. The said E. A. 157 of 1969 was resisted by respondents 2 and 3 who are the legal representatives of the original decree holder and the respondents 5 and 6 who are the purchasers of items 1 and 2 respectively. The 4th respondent was a subsequent mortgagee of the said properties. The executing court dismissed the said E. A. No. 157 of 1969 holding that there was no, irregularity in the conduct of the sale. Aggrieved by the said decision of the executing court, C. M. A. 532 of 1977 had been filed by the judgment debtor. That appeal was allowed by this court on the ground (1) that considerable prejudice has been caused to the judgment debtor in advancing the hearing of the execution petitioner without notice to him or his counsel. (2)that the advancement of the hearing of the execution petition is a clear case of the abuse of process of court and (3) that the sale had gone on without the judgment debtor's valuation being shown in the proclamation. The result was, E. A. 157 of 1969 stood allowed and the sale in favour of the respondents 5 and, 6 stood aside. Later, two petitions, one by the 3rd respondent and the other by the legal representatives of the 5th respondent were filed for setting aside the judgment of this court in C. M. A. 532 of 1977 dated 5-3-1981.