NELLURI BRAHMIAH Vs. MOHD SHEIK MOHIDDIN

JUDGEMENT

(1.) This appeal under clause 15 of the Letters Patent is filed against the Judgment of Syed Qamar Hasan, J., in C.M.S.A. No. 99 of 1959 with his leave.

(2.) For a proper appraisal of the issues arising in this appeal, it is useful to state a few facts. O.S. No. 523 of 1955 on the file of the District Munsif's Court. Eluru, brought by the present second respondent resulted in a decree in his favour for a sum of about Rs. 2,100. In execution of that decree, he brought to sale on 1st July, 1957 Ac. 3-50 cents of wet lands and 19 acres of dry lands said to be situated in Borrampalem village. They were purchased by the present appellant for a sum of Rs. 5,400. As he committed default in making the initial deposit of 25 per cent., the properties were put up for re-sale on 2nd September, 1957, and they were purchased by the decree-holder himself subject to a mortgage in his own favour over the same properties. Thereupon, the judgment-debtor, claiming the benefit of Order 21, rule 71, Civil Procedure Code, sought to recover from the defaulting first purchaser, i.e., the appellant herein, the deficiency in price on re-sale amounting to Rs. 2,900.

(3.) This application was resisted by the appellant on the ground that there were material irregularities in the sale and, consequently, he was not liable to make good the deficiency. This objection prevailed with the trial Court which dismissed the application. It was held by that Court that the judgment-debtor had no saleable interest in one of the items of property, namely, the wet lands.