BANKA KAMA RAJU DIED Vs. NOONE KASIVISWANADHAM

JUDGEMENT

(1.) This C.M.A is directed against an order passed by the Executing Court, dismissing an application filed under Rule 105 of Order XXI C.P.C.

(2.) The subject-matter of the appeal is a money suit, and it has got a very long and chequerred career. The first respondent filed O.S. No.253 of 1968 in the Court of I Additional Senior Civil Judge, Vijayawada, against the first appellant for recovery of a sum of Rs. 51,744/- on the strength of a receipt, dated 21.8.1968. An application under Order 38, Rule 5 C.P.C., was filed and certain items of property were attached, during pendency of the suit. The first appellant denied his liability and disputed the genuineness of the receipt, dated 21.8. 1968. The Trial Court decreed the suit on 30.12.1970. In A.S. No.207 of 1971, the execution of the decree was stayed by this Court, subject to the condition that half of the decretal amount is deposited within three months. On the ground that the condition was not complied with, the first respondent filed E.P. No.229 of 1971, for realization of Rs.67,500/-. The property comprising of 11 portions in an area of about 1200 square yards, was sold in the Court auction on 24.7.1972, and the sale is said to have been confirmed on 29.7.1972.

(3.) The appellant filed E.A. No.1111 of 1972 under Rule 90 of Order XXI C.P.C., as it stood then, to set-aside the sale. He pleaded that the sale was irregular; for the reasons, that adequate publicity was not given, upset price was fixed solely on the basis of the valuation given by the decree holder, the other intending bidders were discouraged and dissuaded by the decree holder, and that the auction purchaser was none other than the illatom son-in- law of the decree holder. The E.A was dismissed for default, on 29.8.1973. Thereupon, the appellant filed E.A. No. 1029 of 1973 to set-aside the order dismissing E.A.1111 of 1972 for default.