GOVINDASWAMI PADAYACHI Vs. ARUMUGHA PADAYACHI

JUDGEMENT

(1.) THIS revision petition arises out of proceedings for setting aside the sale of agricultural lands taken under 0.21, R.90, C.P.C. on the ground that the decretal debt having been scaled down in accordance with the provisions of S.7 of Act IV of 1938, as modified by Act VIII of 1973, the sale is vitiated by irregularity.

(2.) THE petitioner is a judgment debtor against whom a decree has been passed in O.S. No.903 of 1970 on 18.12.1971, for a sum of Rs.4,722.50. An execution petition filed originally on 4.2.1972, on the basis of which some items of agricultural property were attached was dismissed on 23.1.1973, but the attachment was ordered to be continued. THE decree holder then filed fresh execution proceedings being E.P.No.403 of 1973 on 13.2.1973. In execution proceedings, the attached properties were sold by auction for Rs.2,436. Lots 7 to 12 were purchased by the decree holder himself on 24.11.1973. Before the sale was held on 26.11.1973, the judgment debtor filed an application under S.19 of Tamil Nadu Debt Relief Act, 1938, (hereinafter referred to as 1938 Act), on 22.11.1973, before the executing court.

(3.) THE facts in this case are not in dispute and the only question is whether for the purpose of 0.21, R.90 C.P.C., there can be said to have occurred an irregularity which vitiates the sale by virtue of the fact that subsequent to the auction sale, there was scaling down of the decretal debt and thereby reduction of the judgment debtor 'liability. 0.21, R.90, C.P.C. reads as follows: '(1) Where any immovable property has been sold in execution of a decree, the decree holder or the purchaser or any other person entitled to share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale, on the ground of material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation sale was drawn up. Explanation - THE mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule ' Under sub-R.(l) of R.90, 0.21, C.P.C. undoubtedly, the judgment debtor was entitled to apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. However, under sub-R.(2) thereof, it is everesle provided that unless the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud, the sale shall not be set aside on the ground of irregularity or fraud in publishing or conducting the sale. For the purposes of 0.21, R.90, C.P.C, therefore, it is not enough to merely show that there has been any irregularity but it has to be further proved that the applicant has sustained substantial injury by reason of such irregularity. Unless both these ingredients are therefore established, the court cannot exercise its power of setting aside the sale under 0.21, R.90, C.P.C.