P RAMI REDDY Vs. P SUNDARA RAMA REDDY

JUDGEMENT

(1.) The appellant-decree-holder obtained a final decree in a mortgage suit, on Jan.18, 1971 on the foot of a mortgage deed dated July 27,1959. He laid the execution in E.P. NO. 48 of 1972. Items 1 and 12 of the E.P. Schedule were sold on Sept. 4, 1978 in which the second respondent herein purchased item 12 and the third respondent purchased item 1 of the E.P. Schedule. To set aside the sale, an application has been filed under O. XXI Rr. 89 and 90 of the Civil P.C. the lower Court set aside the above sales. As against that order in respect of item 12 of E.P. Schedule the present appeal has been filed. At this stage it is necessary to clarify that the third respondent did not file any appeal. Therefore the order setting aside the sale made in his favour was allowed to become final.

(2.) The sale was set aside on three grounds. The second respondent acting on behalf of the decree-holder, played fraud on the Court in undervaluing the property by the Amin. The bidders who participated in the auction are only collusive bidders propped up by the second respondent. The permission granted to the decree-holder to bid in the auction is personal and the second respondent is not entitled to bid on behalf of the appellant and he cannot get the right to set off as contemplated under O.XXI R.72(1) of the Code of Civil Procedure. As he did not deposit th purchase price on the date of sale, the sale became illegal.

(3.) In this appeal Sri M. V. Ramana Reddy, learned counsel for the appellant strenuously contends that the entire approach of the lower Court is vitiated by error of law. There is no fraud played by the second respondent. The Amin has committed the mistake in putting the incorrect value of the property in the saleistihar. The Commissioner appointed by the Court himself valued the land at Rs. 5,000/- per acre. That was also part of the record. Therefore the finding that the second respondent played fraud is not tenable. He also further contended that the bidders are independent bidders. They have nothing to do with the second respondent. His main forceful contention is that the application, E.A. No. 58 of 1978 is to permit the second respondent to bid in the auction on behalf of the decree-holder. When the lower Court said that the petition was allowed as prayed for, it means that the second respondent was permitted to bid on behalf of the appellant. The further condition stipulated in the order that the sale price shall not be less than the upset price is imposed only to the appellant personally. On so reading it must be construed that the second respondent is permitted to bid on behalf of the decree-holder. Thereby the sale is not vitiated for non-deposit of the amount as contemplated under R. 84(1) of O. XXI C.P.C.