JANIKAMMA Vs. A BULLEYYA

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants in this appeal. This suit is laid by the respondent herein, the sole plaintiff for a declaration that the sale held by the court in E. P. No. 35/69 in O.S. No. 127/66 on 21-7-1970 is null and void or to set aside the sale and direct defendants 1 and 2 to pay the amounts withdrawn by them and also refund the amount in deposit in the court.

(2.) The Plaintiff also filed along with the suit two applications E. A. No. 164/73 in O.S. No. 127/66 under S.17 of the Limitation Act and also E A. No. 165/73 under Ss.47 and 151, C.P.C. praying alternatively to set aside the sale explaining the delay in filing the said application if the suit is held to be not maintainable.

(3.) The plaint allegations in brief are : Defendants 1 and 2 obtained money decrees against defendants 3 to 7 and the 1st defendant brought the property to sale in execution of his decree subject to three mortgages dated 6-5-1960, 7-5-1960 and 14-8-1963 valued at Rs. 12,000/-. Rs. 6,000/- and Rs. 2,500/- respectively and the sale proclamation itself mentioned the value of the property subject to those mortgages at Rs. 100/- and the same valuation was shown in the sale affidavit Ex. A-3 also but contrary to that the sale list at the time of auction showed the value of the property at Rs. 15,000/- and hence the bid was started at Rs. 15,000/- and the plaintiff was misled in thinking that the property was sold free of encumbrances as at the time of the auction the encumbrances were not announced and consequently the plaintiff participated in the bid and purchased the property at Rs. 16,500/-. It is also urged that one M. Jagannadharaju who is related to the 2nd defendant present at the time of the auction encouraged the plaintiff to participate in the bid without disclosing that the property was encumbered and thus the proceedings of sale are vitiated by mistake and fraud and the same is liable to be set aside. The plaintiff also urged that this fact that the property was sold subject to mortgage came to his knowledge only when the plaint filed by one of the mortgagees was served on him, and consequently the delay in filing the application to set aside the sale is liable to be ignored as per the provisions of S.17 of the Limitation Act if it is found that the suit is not maintainable.