V SATYANARAYANA Vs. B BALAKRSHORE

JUDGEMENT

(1.) The facts of the case, in brief, are as follows: The plaintiff (respondent herein) filed the suit in the year 1979 on the basis of a promissory note under which some monies were lent by the plaintiff to the defendants (the appellant being one of the defendants in the suit). The suit was hotly contested and ultimately a decree was passed in favour of the plaintiff on 18-2-84. Against the, said decree, the defendants filed an appeal in A.S.No.2980/84 on the file of this Court and the matter is still pending. It is stated that inasmuch as the conditional order passed by this court for stay of the execution of the decree, was not complied with, the execution proceedings were proceeded with and in pursuance of the same, a court auction was held. Aggrieved by that, the 3rd Judgment-debtor preferred E.A.No.388/87 on the file of the Court of the Subordinate Judge, Gudivada for setting aside the aforesaid court auction raising certain objections. The learned Subordinate Judge having considered all the objections raised by the 3rd Judgment-debtor, dismissed E.A.No.388/87 confirming the court auction. Hence, the present appeal.

(2.) It is submitted by the learned counsel for the appellant that a total amount of Rs.62,970/- has been deposited into the court at different intervals from 25-4-86 to 17-5-87. The grievance of the learned counsel for the appellant is that the aforesaid amount was not shown in the proclamation of sale and therefore, the sale is liable to be set aside. I am afraid, it is the correct stand for the learned counsel to take. It is seen that whenever the E.P. is costed for hearing, the judgment-debtors were paying some amount and the E.P. was being adjourned. It is not known whether the amounts so deposited into the court were withdrawn. Since the judgment-debtors paid some amounts whenever the E.P. was posted for hearing, and sometime even after the proclamation of sale was made, mere showing of the amounts which were deposited before the proclamation of sale cannot be a ground to set aside the sale. With regard to valuation, there is dispute in so far two items are concerned. It is the duty of the judgment-debtors to make out a case for themselves and it is not for the court to make out a case for the judgment debtors where the particulars are not available on record. It must be noted that even at the time of the auction, no application of any tupe has been filed stating that the amount shown in the proclamation of sale is incorrect. Even the court raised the attachment and allowed the judgment-debtors to sell the property in question by private negotiations but the judgment-debtors could not succeed in their attempts. When several opportunities have been given to the judgment-debtors at different times, before auction they cannot raise an objection with regard to the court sale. The objections raised clearly show that it is yet another attempt to see that the sale will not take place at all. It is true, as pointed out by the Supreme Court, that dialatory tactics played by the judgment-debtor cannot be taken into account. But in this case, as is evident from the record itself, an opportunity has been given to the Judgment- debtors to sell the property by way of private negotiations. Having failed in their attempts, the Judgment-debtors cannot raise an objection for the sale on the ground that correct figures were not shown in the proclamation of sale. The words "Fraud" and "dialatory tactics" have to be construed with reference to the facts and circumstances of each case.

(3.) Secondly, the learned counsel for the appellant contended that Exs.A.1 to A.3 sales statistics were filed which reveal the correct valuation of the lands in the year 1987 and the same have not been taken into consideration at the time of effecting court sale. Inasmuch as they have not been taken into consideration, the learned counsel contends, the sale is liable to be set aside. Exs.A.1 to A.3 sales statistics are useful for valuation for the purposes of registration. R.W.1 has admitted that he has not produced any sale deeds with regard to the neighbouring lands for arriving at a reasonable valuation of the lands in question. In the case of a direct sales, where clear title is there, the property will be registered by the registering authority as per the valuations given in Exs.A.1 to A.3 sales statistics. It cannot be said that the same valuation will be accepted for Court sales. Naturally, in court auctions/ sales, the properties sold will fatch less amount than the one that has been mentioned for the purposes of registration. Hence, the valuations given in Exs.A.1 to A.3 cannot be accepted as the value of the lands in question.