MUNIKRISHNA REDDY Vs. S K RAMASWAMI

JUDGEMENT

(1.) THIS was first filed as an appeal (C. M. S. A. No. 65 of 1966) by one Munikrishna reddy, but on the objection of Sri K. S. Champakesa Iyen-gar, the learned counsel for the respondents, that an appeal did not He, an application (C. M. P. No. 3505 of 1968) was filed to convert this appeal into a civil revision petition, and. in the interests of justice, I have decided to convert this appeal into a civil revision petition. (C. B. P. 612 of 1968) I shall, therefore, refer to Munikrishna reddy as the petitioner.

(2.) HE was the second defendant In Order S. No. 580 of 1962 on the file of the district Munsif of Vellore, It was a mortgage suit. A final decree for sale, was passed in 1964, and the decree-holder, Ramaswamy Reddy, filed E. P. No. 513 of 1964 and brought the several items of the hypotheca to sale on 15-2-1965. One sadasiva Reddy became the auction purchaser of some of these items for Rs. 3,765/ -. Within thirty days Munikrishna Reddy, the petitioner, filed an application under Order 21 Rule 90 C. P. C. , E. A. No. 352 of 1965, for setting aside the sale on several grounds, such as, (i) no notice was taken, to him under Order 21 Rule 66 and he was not even aware of the sale; (ii) there was no proper proclamation or publication) (iii) the decree-holder had valued the property at a grossly low price, though it was really worth Rs. 20,000/-and that was responsible for the low price for which it was sold; (iv) the auction purchaser was the decree-holder's brother-in-law and only a benamidar for the decree-holder; and permission to bid not having been taken under Order 21 Rule 72, the sale was vitiated,

(3.) THIS application was contested by the decree-holder and the auction purchaser, and came up for hearing on 14-7-1965. On that date the petitioner was absent and the petition was dismissed on that ground, the actual order of the learned district Munsif being, "petitioner absent. Petition dismissed. No costs". Shortly thereafter the execution petition was taken up and, after reciting the dismissal of e. A. No. 352 of 1965, part satisfaction for Rs. 3. 606-40 was recorded, the sale was confirmed and the sale certificate was directed to be issued, and the execution petition itself was dismissed on 14-7-1965. Against the order dated 147-1965 dismissing E. A, No. 352 of 1965, the petitioner preferred an appeal under order 43, Rule 1 (j), which provides for an appeal against "an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale". and St came up before the learned Subordinate Judge of Vellore as C. M. A. No. 146 of 1965. In paragraphs 4 and 5 of the grounds of appeal the petitioner urged as follows: