GUNDA RAMASWAMY Vs. SUDA CHINA BHADRAIAH

JUDGEMENT

(1.) The petitioner is a partner of a partnership firm and in suit filed on the basis of a promissory note, O.S.No.171/80 on the file of the Court of the Subordinate Judge, Narasaraopet a decree was passed on 5.3.1982 against the firm and its partners in a sum of Rs.33,131-70. The decree-holder filed E.P.No.57/82 and proceeded to bring to sale an extent of ac.2-27 cents owned by some of the partners of the firm. In the said extent of land the petitioner who was also a judgment-debtor owned 9 shares each of 5 cents. The petitioner's share in the partnership was 22 paise and the total extent of ac.2-27 cents was divided into 36 plots each of 5 cents leaving some are for the roads etc. The Execution Court passed an order on 13.6.1983 that the property ac. 2-27 cents should be proclaimed and sold. I am informed that on 16.8.1983 the sale was postponed for want of bidders. The matter was adjourned to 28.10.1983. Six days before the adjourned day the petitioner-judgment-debtor filed E.A.No.398/83 under Order 21, rule 83, C.P.C. requesting the executing Court for permission to sell the property by private sale on condition of the purchase depositing the entire consideration into Court towards discharge of the 22 paise share of his liability. In that application he further mentioned that the property was fit for house sites, that it was already divided into 36 plots of 5 cents each in four rows and that he sold one of his 9 plots to one C.G.Saidaiah. It. is mentioned acrossed the bar that the said sale of 5 cents was on 6.2.1982 by private negotiation and that consideration was Rs.30,500/-. The money was adjusted towards a debt owned by the petitioner to the purchaser and after such adjustment a small amount of Rs.1,000/- alone was payable to the petitioner by the said purchaser. The execution court rejected the petitioner's application by its order dated 28.10.83 stating that there were no bona fides on the part of the petitioner, that even though the petitioner sold 5 cents of the property he did not deposit any amount into court. After thus rejecting the petitioner's application the executing Court conducted a court auction of the entire extent of ac.2-27 cents for a sum of Rs.2.67 lakhs and odd. The petitioner has preferred this revision on 30.11.1983 to this Court against the Order in E.A.No.398 of 1983 and an application was filed to implead the auction purchaser as the 6th respondent.

(2.) In this revision Sri P.Ramachandra Reddy represented the petitioner-judgment- debtor while Sri A.Suryanamurthy represented the decree-holder and Sri J.V.Suryanarayana Rao and Sri M.Y.K.Baidu represented the auction purchaser.

(3.) In this revision it is contended by the learned Counsel for the petitioner that the execution Court erred in thinking that the application was belated. Rule 83 of Order 21, C.P.C. enables a judgment-debtor to file an application under that rule at any time before the Court sale was held. The lower Court, according to him, also erred in thinking that the sale proceeds in respect of the sale of 5 cents on 6.2.82 was not deposited towards this decree by the petitioners. That sale was in discharge of a debt, owed by petitioner to the purchaser and almost all the sale consideration had to be adjusted towards the debt owed to. the purchaser.