A P V RAJENDRAN Vs. S A SUNDARARAJAN

JUDGEMENT

(1.) The appellant. who in, the same in an then appeals in a decree-holder in O. S. No. 328 of 1972 an the file of the Sub Court, Madurai He obtained a decree in the add suit on 22-10-1971 Even before the passing of the decree he had attached the property of the respondent judgment-debtor in I A. No. 597 of 1971 before judgment. The said attachment was made absolute an the date of the decree. The appellant thereafter filed E. P. 222 of 1972 for the sale of the attached property to Teatime the decree amount. On 6-2-1973 and 17-4-1973, the respondent has paid in all a sum of Rs. 6,000. For the balance of the decree amount let No. 1 of the attached property was actually sold, on 28-1-1974, for a sum of Rs. 40,000, to the decree-holder and the second lot was not sold for want of bidders. The sale of lot No. 1 was confirmed by the court on 2-3-1974 and full satisfaction of the decree has also been recorded.

(2.) Subsequently the appellant filed a petition in E A. 600 of 1974, in E. P. 222 of 1972, for setting aside the sale of lot No. 1 held on 28-1-1974, under Section 47 C. P. Code on the ground that there were several irregularities in the settlement of the sale proclamation and also in the conduct of the sale. The irregularities alleged were - (1) that the proclamation was not duly drawn up according to law in that a sum of Rupees 6,000 paid on two earlier dates on 52-1973 and 17-3-1973,. had not been given credit to and that the sale proclamation had not been properly filled up and it contained a number of gaps; (2) that the sale proclamation did not also contain the date of auction and the date when the court had posted the case for further hearing after auction; (3) that the sale proclamation did not give half yearly tax payable for-lot No.1or the revenue assessment for lot No. A which are quite material to enable the intending bidders to know the actual value of the two lots; (4) that the reduction of the upset price from Rupees 80,000 to Rs. 40,000 for lot No. 1 is not proper and (5) that the judgment-debtor is an agriculturist entitled to the benefits of Act IV of 1938, as amended and the decree-holder cannot claim any interest prior to 1-3-1962 and therefore the amount mentioned in the sale proclamation as being due from the Judgment-debtor is incorrect.

(3.) The said application filed by the judgment-debtor under Section 47 C. P. Code for setting aside the sale was resisted by the appellant an various grounds The first and foremost defense taken is that an application for setting aside the sale under Section 47 C. P. Code is not maintainable and that it in also barred by limitation. The other defences are that the proclamation was drawn up for the law, that the sale proclamation was drawn up for the amount actually due after giving credit to the payment made by the judgment-debtor, that there was no irregularity, much less material irregularity, in the matter of either the settlement of the sale proclamation or In the actual conduct of the sale, and that the sale of lot No. 1 is perfectly legal and valid and there was no undervaluation of that property.