BUDDIGA GANGANNA Vs. T VEERABHADRARAO

JUDGEMENT

(1.) This appeal is against an unnumbered E. A. of 1972 in E. P. No. 8 of 1970 in O. S. No. 63 of 1968 on the file of the Court of the 1st Additional District Judge, East Godavari, at Rajamundry. The judgment-debtors are the appellants and the decree-holder is the respondent.

(2.) The judgment-debtors filed an application under Order 21. Rule 90, Civil P. C. In the said petition, they prayed that the Court might be pleased to set aside the sale held on 2-2-1972. The application was filed on 2-3-1972, within 30 days from the date of the sale. In the affidavit filed on behalf of the judgment-debtors by the 3rd judgment-debtor in support of this application it was alleged that the decree-holder had brought the property to sale subject to a mortgage in favour of Konavaran Co-operative Land Mortgage Bank and that the property was sold for Rs. 4,200.00 subject to the mortgage. It was averred that the mortgage was cleared a long time back (no date was given) and the decree-holder was aware of the same. In suppressing the fact that the mortgage was not subsisting the decree-holder has played fraud on the Court with a view to make wrongful gain to himself. The property was worth Rs. 18,000.00 and it was purchased by the decree-holder for Rs. 4,200.00 subject to the mortgage. It was also urged that there was not regular tom-tom in the village, that the proclamation was not property made and that the sale suffered from material irregularities in a general way, resulting in loss to the judgment-debtor.

(3.) It may be noted that Sec. 47 Civil P. C. was not mentioned in the application but only Order 21, Rule 90, Civil P. C. was mentioned. The Court, having regard to the Proviso to Order 21, Rule 90, Civil P. C. before admitting the application called upon the judgment-debtors to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or that realised by the sale whichever is less granting seven days time for the purpose. The unnumbered E. A. was represented by the judgment debtors on 24-3-1972 stating that no security was required to be furnished, as six items of properties belonging to him were under attachment and that only one item was sold that the remaining items would afford sufficient security for the required amount. The Court on 28-3-1972 rejected the above submission of the judgment-debtor and posted the application for hearing the Advocate for the judgment-debtors to 30-3-1972. On 30-3-1972 on behalf of the judgment-debtors 15 days time was requested for giving the security as directed by the Court. The Court granted the same directed by the Court. The Court granted the same subject to limitation. On 12-4-1972 further time was prayed for by the judgment-debtors for furnishing security and time was finally extended to 19-4-1972 for furnishing security. On 19-4-1972 the E. A. was rejected as security was not furnished. It is against the order of rejection that this C. M. A. is filed by the judgment-debtors.