BUDHAMAL HAJARIMAL Vs. LAXMIBAI BHR BABURAO

JUDGEMENT

(1.) THIS is an appeal against the order of the Civil Judge, Senior Division, Sholapur, setting aside a court sale under Order 21, Rule 90, C. P. C. The plaintiff filed special suit No. 98 of 1948 in the court of the Civil Judge, S. D. at Sholapur to enforce a mortgage and obtained on 26-9-1951 a decree absolute for sale of. the mortgaged property. Thereafter the plaintiff filed darkhast No. 55 of 1952 to recover Rs. 7130/- odd together with costs and running interest from the judgment-debtors. The properties of the judgment-debtors were put up for sale on 7-11-1952 and were purchased by a partner of the mortgagee firm for Rs. 8000/- with leave of the court. On 5-12-1952, defendant 2 against whom alone, it appears the' decree was passed applied for setting aside of the sale under Order 21, Rule 90, C. P. C. In that application defendant 2 contended that the sale was vitiated on account of material irregularity and fraud in conducting the sale, and that the purchaser being a stranger should have been called upon to deposit the amount for which the property was sold; that the auction sale was held during the pendency of she application filed by defendant 2 for instalments; that there was material irregularity in issuing the sale proclamation inasmuch as the property was misdescribed therein at the instance of the mortgagee; and that the mortgagor had made improvements on the property 'at considerable expenses which were not brought to the notice of the Court and that the value of the property at the time of the sale was Rs. 27,000/- while it was sold for Rs. 8000/- only to a partner of the mortgagee. .

(2.) THE learned trial Judge directed the parties by his order dated 18-9-1953 to file affidavits in support of their respective cases. Defendant 2 filed two affidavits Exs. 14 and 15 in support of her contention that the property was misdescrib-ed in the sale proclamation and that there had been material irregularity in conducting and publishing the sale, and that she had suffered substantial damages by reason of the sale of the property for Rs. 8000/- to the partner of the mortgagee. The affidavit of Salbanna Ex. 15 stated that the property had been Improved at a cost of Rs. 8000/ -. Saibanna it appears was working as 'mistry' for about 30 years. He stated that about 3 or 3 1/4 years ago he had constructed the Vakhar as a mason and that he had also constructed three rooms and a verandah and a privy of which he estimated the cost at approximately Rs. 4000/ -. He also stated that in plot No. 55742 he had constructed acompound wall and adjoining two rooms in addition to the 'jota' and its foundation. According to Salbanna the amount of Rs. 4000/- must have been spent in making these constructions and a 'houd' or a tank. In the view of this witness the value of the property was about Rs. 25,000/ -.

(3.) THE plaintiff auction-purchaser filed his affidavit Ex. 16 formally denying that any additional construction was made by the mortgagor. It was then stated in the affidavit that even assuming that additional constructions were made on the property, they were not of a substantial nature.