SAYEEDA BEGUM Vs. MOHAMMAD ABDUL QUYUM

JUDGEMENT

(1.) The Letters Patent Appeal is directed against the Judgment of our learned brother; Justice Kumarayya, allowing the appeal of the auction-purchaser and setting aside the order of the learned 1st Additional Judge City Civil Court, Hyderabad.

(2.) The facts giving rise to this appeal are; One-Ghulam Mohammed instituted a suit, O.S. No. 140 of 1956 for partition of the matruka property of Sofia Begum, which consisted of a house bearing No. 127 old and 1114-new situated at Mohalla Devidi Rao Rambha, Hyderabad City, He obtained a preliminary decree on 30/7/1957, for one-third share in the entire house. The house could not be partitioned and, therefore, on the report of the Commissioner the Court directed that the house be put to sale and the sale proceeds thereof be divided amongst the plaintiff, Ghulam Mohammed and two others Sayeeda Begum and Mohammed Aulia. A final decree was accordinly drawn on the 8/9/1958. On 8/10/1958 the execution petition was filed which was actually numbered on 28/11/1958. Before the sale could be effected, a formal attachment was made on 8/12/1958. Notices for settlement of terms 61 sale were issued to the parties on 22/12/1958. It appears that - Sayeeda Begum was then living in Madras along with her husband. On 4/3/1959, on the report of the office that notices were served, proclamation and warrant of sale were directed to be issued and the sale was eventually knocked down in favour of the auction-purchaser on 18/7/1959, for a sum of Rs.6,700..00 He deposited one-fourth of the money on the very date and the balance on 25/7/1959. The appellant herein (Sayeeda Begum) who was entitled to a one-third share in the decree, then filed a petition purporting to be under Order 21. rules 88 and 89, Civil Procedure Code, on the 17/8/1959, requesting that the sale may be set aside. Her plea was that a notice for the auction of the house was not served on her as she was then living at Madras. As she-was co-sharer and was in possession of the house through a tenant, she expressed her readiness to deposit the sale amount to the extent of her share together with any other amounts which she may have to deposit in the Court. She contended that the sale ought not to have taken place in her absence and that, therefore, the same may be set aside. This petition was resisted by the auction-purchased and the plaintiff on the ground that not only the notice was duly issued, but also the proclamation was published in the daily newspapers "Deccan Chronicle" and "Siasat" and the petitioner (appellant) must be presumed to have knowledge of the same. Their further plea was that the petition must be dismissed in limine inasmuch as rule 88 of Order 21 is not applicable to the case and the petitioner had not deposited the amount mentioned in rule 89 of Order 21, which is a condition precedent for entertaining her objection petition under the said rule.

(3.) It appears that after the counters were filed, the petitioner deposited a sum of Rs.2,232.0033nP. On 15/9/1959, which represented 5 per cent, of the auction price payable to the auction-purchaser plus one-third of the purchase amount payable to the decree-holder. Subsequently, she deposited the whole amount on 1/12/1959. The learned Additional Judge found that the notices for settlement of terms of sale, though issued in the names of all the judgment debtors, were not served on the judgment-debtor No. 3 Sayeeda Begum and judgment debtor No. 4 and thus the provisions of Order 21, rule 66, sub-clause (2) were not complied with. He also held that the amounts required to be deposited under Order 21, rule 89, Civil Procedure Code, were in fact deposited, though not within thirty days from the date of sale and since the sale was known to her only on 17/8/1959 as per her affidavit, the deposit within thirty days thereafter was quite in accordance with law and hence her petition was maintainable. Holding so, he set aside the sale. The auction-purchaser challenged this order in appeal which came up before our learned brother Justice Kumarayya. Our learned brother framed the following two points for consideration viz.,