RAJARAM NATHUJI PATHODE Vs. MANIRAM SAMBHA KOSE

JUDGEMENT

(1.) The present revision has been filed by the original plaintiff-decree holder Rajaram and the Auction - Purchaser Bisan against an order made by the District Judge, Chandrapur, in Miscellaneous Appeal No.2 of 1968, by which that Court allowed the application under Order 21, Rule 90 of the Code of Civil Procedure originally by the judgment-debtor one Sambha Laxman Kose.

(2.) The material facts appear to be that in Civil Suit No.56 of 1963 in execution of a decree in the sum of Rs.1,561.60 which was passed against the said Sambha, in execution thereof the decree-holder, present applicant No.1. purported to attach immovable property being the agricultural lands bearing khasra Nos. 261/1 and 261/1 , total area 4.93 acres, which was eventually purchased in a Court auction by the applicant No. 2 Bisan, in the sum of Rupees 8,600/-. It appears said Sambha, the judgment-debtor, purported to file the present application on January 13, 1967 under O.21, R.90, Code of Civil Procedure, for setting aside the sale. Sambha died after about four months after the institution of the said application and his legal representatives were brought on record. By that application Sambha had stated that the lands in question had fetched inadequate price, in that there was a pucca well for the purpose of irrigation available in the field and the said land would have fetched in due course at least Rs.3,000/- per acre. It was alleged in the application that the Decree-Holder was actuated with the sole intention to cause irreparable loss to the Judgment-Debtor and with that objective had committed several acts of mischief. While narrating the items of such mischief's or irregularities Sambha pleaded that although the Judgment-Debtor, in the year 1965, i.e., prior to the attachment, had constructed a pucca well in the field attached for the purpose of irrigation, the Decree - Holder had omitted to mention its description in the sale statement with the sole intention that the property when sold should fetch less price. Further allegations made there are that in effect the property had fetched low price. Further allegations made there are that in effect the property had fetched low price. There was omission of the correct market price mentioned in the sale proclamation and the bidders were misled. It was further alleged that the Decree Holder at the time of the sale declared that the property had heavy encumbrances which he had never sought to be stated in the sale-statement and so that the bidders were refrained from offering fair price. After narrating all these material irregularities in the application, Sambha proceed to State that the above irregularities caused substantial injury to the Judgment-Debtor and the question of right of well will arise in case the sale is confirmed and prolong the litigation for the malicious intention of the Decree-Holder to cause wrongful loss to the Judgment-Debtor. The application is not drafted by any advocate, as it appears, but contains the basic allegations which can legitimately be made under Rule 90 of Order 21 of the Code. To this both the Decree-Holder and the Auction-Purchaser filed their say by filing written statements at Exhs. 26 and 27. The Decree Holder in terms admitted that there is a well in these fields, However, he denied the price would have been Rs. 12,000/-, as alleged. General allegations are to be found in the written statement to the effect that there was no material irregularity in publishing or conducting the sale and there was no substantial injury by the sale of this property. It was further stated that mere omission to mention the well does not amount to material irregularity. The statement adds that when the immovable property is sold, it is sold subject to all the fixtures attached to it. The other allegations regarding the Decree-Holders attempt to persuade the bidders were denied. The Auction-Purchaser, by his written statement similarly made general denials on the same line, but in no uncertain terms admitted that there was a well in those fields. He purported to further say that there was no material irregularity or fraud nor there was any substantial injury caused to the Judgment-Debtor.

(3.) Therefore, the existence of well in the fields for the purpose of irrigation was a fact not in dispute. It appears even from the evidence of the Auction-Purchaser Bisan that he had in fact gone to the field prior to the bidding. He had stated that before bidding at the auction, he had personally seen the condition of the land and according to him, 3 acres of land was under cultivation and about 2 acres of land was fallow.