MUDRAGEDA SURYANARAYANAMURTHI Vs. SOUTHERN AGENCIES RAJAHMUNDRY

JUDGEMENT

(1.) This C.M.A.appears to have been directed against the orders of the District Judge, East Godavari, Rajahmundry, dated 16/12/1957, passed in E.A. 144/57 and E.P. 63/55 in O.S. 191/1953 on the file of the Court of the District Munsiff Rajahmundry.

(2.) The facts relating to this appeal may be briefly stated: - The properties of the appellant who was the judgment-debtor in E.P. 63/55 in O.S. 191/53 aforesaid, were brought to sale by the District Judges Court, Rajahmundry in execution of the said decree and were sold on 3-8-1957. The auction-purchaser deposited 1/4th of the sale consideration on the day of the sale, and subsequently the remaining 3/4ths, within fifteen days as required by Order 21, Rule 85 C. P. C. While making the payment of the sale consideration, he also deposited a sum of Rs. 36.00 towards the general stamp for the sale certificate, under the impression that all that he bad to deposit was 3 per cent of the value of the sale consideration which amounted to Rs. 36.00.The correct amount as calculated with reference to Arts. 16 and 20 of Schedule 1-A of the Stamp Act as applicable in the Andhra Pradesh State was Rs. 45.00, and not Rs. 36.00. Discovering this mistake, the auction-purchaser deposited the further sum of Rs. 9.00 some days later on 8-10-1957. Contending that the failure to deposit the full value of the general stamp or the full amount required for the general stamp within the time allowed by Order 21, Rule 85 C. P. C. amounted in effect to a violation of the mandatory provision, and that, consequently, the sale must be regarded as having been wiped out, the present appellant filed E.A. 144/57 praying for the sale being set aside.When this application came on for hearing before the Court below, the petitioner was absent and his advocate reported no instructions. Thereupon the order was made dismissing the petition with costs. This order, it is admitted, is not appealable, and no revision petition has been preferred against the same. Further, the order itself could not be questioned on the merits because it is not disputed that the Petitioner was absent, nor is it disputed that the petitioners advocate reported no instructions and consequently, the only proper and valid order to have been made in the circumstances was to dismiss the petition, and no exception could be taken to that order, in law. When this objection was pointed out to the learned counsel for the appellant, he took his stand on the ground that the appeal was also against the order on the execution petition 63/55 recording part satisfaction of the decree on the basis of the sale held in the case, and the (consideration being adjusted against the decree.

(3.) His contention is that the sale itself must be regarded as non-existent, and must be deemed to have disappeared on the failure of the auction-purchaser to deposit into Court the full value of the general stamp payable on the sale certificate to be issued in his favour in regard to the sale. Apart from the objection that there could not be a single appeal against two orders and assuming that the present appeal is only an appeal against the order on the execution Petition under Section 47, C. P. C., the point that arises for consideration is, whether the delay in depositing the full amount representing the general stamp on tile sale certificate would result in the sale itself being regarded as non-existent. In this connection, it is necessary to refer to Order 21, Rules 85 and 86 C. P. C. which are as follows:-