A. SREENIVASA CHARIAR Vs. T.N. SESHADRI IYENGAR

JUDGEMENT

(1.) THE respondents' predecessor -in -title obtained a mortgage decree against the appellant and his elder brother, Anantachari, these two being members of a joint family of which Anantachari was the manager. During the course of execution, the appellant, who was in the army and went as a clerk overseas in March 1942, sent in petitions from time to time through his Commanding Officer asking the Court to stay execution as his presence was essential for the proper disposal of the petition. Later on, after the sale was confirmed, he put in an application to set aside the sale, which was dismissed; and it is against that order of dismissal that the present appeal has been preferred.

(2.) THE question is whether, in view of Sections 6 and 10 of the Indian Soldiers (Litigation) Act of 1925, the lower Courts should have set aside the sale. Section 6 says that the Court shall suspend the proceedings unless the interests of the soldier in the proceedinge are in the opinion of the Court either identical with those of any other party in the proceeding or adequately represented by such party. Section 10 says that if the Court is satisfied that the interests of justice require that the decree or order should be set aside as against the soldier, the Court shall... make an order accordingly. Section 10 therefore empowers a Court to set aside a sale if it is of opinion that it is necessary in the interests of justice to do so. Section 6 permits the Court to refrain from suspending the proceedings if the interests of the soldier are identical with those of any other party and adequately represented by such party.

(3.) IT has been pointed out that on 15th July, 1943, the decree -holder sold for Rs. 11,500 the property which he had purchased in execution of the decree for Rs. 6,500, which, it is said, is evidence of the inadequacy of the price paid and possibly an indication of some fraud. It has however to. be remembered that a purchaser in Court auction is not often willing to pay the market price, as he knows that he may have to indulge in further litigation and that during the years that elapsed between the sale and the re -sale prices of lands were rising very steeply.