KAMINENI SANTHAKUMARI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This appeal arises froman order passed in E.A.No. 143/91 in E.P.No. 24/90 in O.S.No.223/84 on the file of the Subordinate Judges Court at Gudivadaon22-8-1992.

(2.) The appellant being the 4th Judgment Debtor (J.Dr.) in E.P.No. 24/90 filed EANo.143/91 under Order 21, Rule 90 and under Section 47 of the Code of Civil Procedure, to set aside the sale held in respect of the petition schedule property (Item No.7 of the Execution Petition schedule).The 1st respondent herein is the Decree Holder (D.Hr). The 2nd respondent is the auction purchaser. The appellant challenged before the court of the Subordinate Judge,Gudivada the validity of the sale of the petition schedule property in execution of the decree passed in O.S.No. 223/84 on several grounds such as; (1) she was not served with any notice in the execution proceeding at any stage; (2) She had no knowledge of the execution proceeding; (3) The property was sold for grossly inadequate sum; (4) The D.Hr. played fraud and intentionally made in correct description of the property sold and kept the court in dark about the real nature of the property and its value; (5) The fact that there was a tiled house and a pucca shed with asbestos sheet in the schedule property was not mentioned in the sale proclamation; (6) The auction purchaser in spite of being fully aware of the existence of the house and shed therein colluded with the D.Hr and knocked away the property forgrossly in sufficient value; (7) The provisions of Order21, Rule 66 of the Code of Civil Procedure were not complied with and that the sale was vitiated by irregularities, illegalities and fraud. The appellant sought to set aside the sale for these reasons and made Execution Application No. 143/91 for that purpose. The learned trial judge, was however, of the opinion that the appellant failed to establish that the sale was liable to be set aside and dismissed the appellant's application, which necessitated the filing of this appeal.

(3.) On behalf of the D.Hr. (respondent no. 1) it was pointed out by the learned counsel that the appellant or her husband did not raise any objection regarding the existence of a tiled house and shed in the disputed property. They never attended the court and did not participate in any enquiry. Further according to him, the appellant and her husband were aware of the execution proceedings, and in fact, on 25-3-1991 the husband filed a petition to postpone the sale and at his request the sale was held on the next day that is 26-3-1991. Further according to the learned counsel for respondent No. 1, several bidders participated and there was aneck to neck competition. The husband of the appellant was also present at the time of the sale. Further according to him, item No.1 of the Execution petition schedule property was sold for Rs.1,20,000/- and item No.7 sold for Rs. 70,000/-. The sale in respect of item No. 1 had been confirmed and the delivery had already been effected. Further according to him, the disputed property being item No. 7 fetched acorrect market value. The vacant site was worth Rs. 2000/- only. It was situated in a remote village bereft of any potentialities. The titled house and the shed were treated as improvement of the mortgaged property which enured to the benefit of the mortgagee. It was according to him an inseparable improvement.