KATRAGADDA BAPAYYA (DIED) Vs. DOKKU BHUSHAYYA

JUDGEMENT

(1.) WE consider that this appeal should be heard by a Full Bench as it raises a question of some importance relating to the application of Order 32, Rule 7, Civil P. C.

(2.) THE plaintiff and defendants 5 and 6 are the sons of defendant 4. Defendant 1 obtained a decree in O. S. No. 88 of 1929 on the file of the Court of the Subordinate Judge of Bapatla, for the amount due under a promissory note executed by defendants 3 and 4. In execution of that decree, the properties in suit which were the ancestral properties of defendant 4's family were attached and brought to sale subject to a mortgage which had been executed by defendant 4 in favour of defendant 1. In the court auction, the properties were purchased by one Vajja Bapiraju, the brother of defendant 2. He is alleged to be the clerk of defendant 1. The properties were sold for a sum of Rs. 205/ - subject to the mortgage in favour of defendant 1, on 29th February 1932. On 29th March 1932 an application was filed by the maternal grandfather of the plaintiff as his guardian (the plaintiff being then a minor) to set aside the sale under Order 21, Rule 90 (E. A. No. 136 of 1932) on the ground that the sale was vitiated by material irregularities and fraud in publishing and conducting it. This application, after notice to the respondent, was posted for hearing on 6th August 1932. Moan -while, on 28th July 1982, a memorandum, marked EX. D -4 in the case, was filed into Court with the thumb impression of the guardian of the plain -tiff and the initials of his pleader and of the pleader for the court auction -purchaser. On 6th August 1932, the Court made the following note 'Matter is said to have been adjusted and a week wanted. Call on 12th August.' On 12th August 1932, the pleader for the plaintiff's guardian made the following endorsement 'Adjusted. May be dismissed as not pressed.' Thereupon the Court passed an order dismissing the application. Following the dismissal, the sale was duly confirmed under the provisions of Order 21, Rule 92.

(3.) SEVERAL pleas were raised in defence in -eluding the plea that the suit was not maintainable. The learned Subordinate Judge of Tenali held that the order of dismissal was void because sanction of the Court had not been obtained for the agreement in pursuance of which the application was withdrawn by the plaintiff's guardian and set aside the order passed on the application and directed it to be resorted to file. He held that the suit was maintainable. In this view, he did not give his findings on the other issues raised in the case. Defendant 1 is the appellant.