MUDRAGADA SURYANARAYANAMURTHI Vs. SOUTHERN AGENCIES RAJAHMUNDRY

JUDGEMENT

(1.) The appellant in this appeal is the judgment -debtor in O.S. No. 191/53 on the file of the court of the District Munsif , Rajahmundry. The 1st respondent in the appeal is the decree-holder and the 2nd respondent is the person who bid at the auction held in execution of the decree in E.P. No. 63/55. The sale in execution of the decree in E.P.No. 63/55 on the file of the District court, Rajahmundry was held on 3-8-1957 and the 2nd respondent herein became the highest bidder. He deposited 1/4th of the bid amount on that date as required by Order 21, Rule 84 of the civil procedure code and the balance i.e., 3/4ths of the bid amount within 15 days as required by Order 21, Rule 85 C.P.C. Within the said 15 days, the 2nd respondent deposited for the sale certificate, but the correct amount to be deposited for the general stamp for the sale certificate as calculated with reference to Articles 16 and 20 of schedule I-A of the stamp Act as applicable in the state of Andhra Pradesh was Rs. 45.00 and not Rs.36.00 . When this mistake was discovered, the 2nd respondent deposited the balance of Rs. 9.00 towards the general stamp on 8-10-1957. This admittedly, is beyond 15 days prescribed by Order 21, Rule 85 C.P.C. The appellant filed in the District court, East Godavari at Rajahmundry, E.A. No. 144/57 praying to set aside the sale held on 3-8-1957. In the affidavit filed in support of the application, it was alleged that the decree-holder brought his properties to sale and got them purchased in favour of the 2nd respondent, who was his clerk, for the benefit of the decree-holder himself and that the decree-holder did not obtain the permission of the court to bid at the auction. It was also alleged that the property was knocked downfor a nominal price and that there were no outside bidders. It was further alleged that the 2nd respondent deposited only Rs. 36.00 towards the general stamp for sale certificate whereas he had to deposit Rs.45.00 within 15 days from the date of the sale as required by Order 21, Rule 85 and that the balance of Rs. 9.00 was deposited beyond the prescribed period. It was also alleged that the proclamation and publication were not proper. Therefore, it was prayed that the sale held on 3-8-1957 be set aside. The application was filed under Order 21, Rule 86 and S.151 C.P.C. By his order dated 19-11-1957, the Additional District Judge, East Godavari at Rajahmundry, directed the appellant to deposit the sale warrant amount within 15 days from that date and directed that in default of such deposit, the petition (E.A. 144/57) stands dismissed. The application, E.A. 144/57 was again called on 16-12-1957 and was dismissed. On that date itself, the sale was confirmed and part satisfaction for Rs. 1125.00 was recorded. Against these offers, the appellant filled C.M.A.. 2.58. This was heard by our learned brother, Sanjeeva Row Nayudu , J., who dismissed the appeal with costs on 16-11-1960. Vide Suryanarayanamurthi v. Southern Agencies 1961 ALT 138: (AIR 1961 Andh Pra 480). It was contended before thelearned Judge that the full amount required for the general stamp was not deposited before the Court closed on the 15th from the date of the sale of the property as required by Order 21, Rule 85 C.P.C. This contention was rejected by our learned brother, Sanjeeva Row Nayudu J., and the appeal was dismissed. This appeal is filed by the appellant against that judgment under Clause 15 of the Letters Patent.

(2.) One of the questions raised before our learned brother Sanjeeva Row Nayudu, J., was whether an appeal lay against the order dismissing E.A. No. 144/57 and it was suggested before him that the appeal might be treated as one against the order recording part satisfaction of the decree. When the same objection was raised before us, the appellant filed C.M.P. No.8486/61 before us praying to treat it as a Civil Revision petition against the order dated 16-12-1957 dismissing E.A. No.144/57 after excusing the delay. Subsequently, he has presented a Civil Revision petition with a petition to excuse delay (C.M.P. No. 9291 of 1961). Since it is not quite clear whether an appeal lay against the said order, we execuse the delay in filing the Civil Revision Petition against the order dated 16-12-1957 dismissing E.A. No. 144 of 1957 and take on file the C.R.P. Therefore, it is not necessary for us to decide the question whether an appeal lay against the said order.

(3.) The question that arises for determination in this case is whether the sale of the appellants property held on 3-8-1957 in E.P. 63/55 by the District Court, East Godavari at Rajahmundry and in execution of the decree in O.S. No. 191-53 on the file of the District Munsifs Court, Rajahmundry is a nullity and has to be set aside as the amounts mentioned in Order21, Rule 85, C.P.C. were not deposited in full before the court closed on the 15th day from the date of the sale of the property. Under Rule 84 of Order 21: