GUDIVADA VENKATA HANUMANTHA RAO Vs. MAJETY RANGAMMA

JUDGEMENT

(1.) This Civil Miscellaneous Appeal arises out of a petition filed by the appellant herein, Under Order 21, rule 90, of the Code of Civil Procedure, to set aside a sale, which has been dismissed by the Court below.

(2.) The facts in brief are : The 1 st respondent herein obtained a decree against the appellant and five others, including his two undivided sons, for the debts incurred for the tobacco business jointly carried on by the appellant and his maternal uncle, P. Kumaraswami, who is the 3rd respondent herein. The suit was decreed after contest. The 1st respondent herein applied for execution and attached a terraced house with some tiled portion and ultimately it was brought to sale with an Upset price fixed at Rs. 8,000. The 1st respondent (decree-holder) himself purchased it for Rs. 13,000. It appears that in the course of the execution, after the attachment, one P. Venkata Reddi filed a claim petition setting up a mortgage by deposit of title deeds and seeking for the property to be sold subject to his mortgage. This application was dismissed. Just before the sale, another claim petition appears to have been filed by the appellant's wife, as guardian of her two minor sons, for releasing their share of the property and she also sought for stay of the sale. This petition was dismissed. After the dismissal of this petition, Venkata Reddi, who had filed a claim petition earlier alleging a mortgage in .his favour by deposit of title deeds and which was dismissed, filed a claim suit, O.S. No.118 of 1958 on the basis of the mortgage impleading only the appellant and his two sons as parties to that suit. The 1st respondent (decree-holder) on coming to know of the suit, got himself impleaded and contested the same. That suit was ultimately dismissed. Exhibit B-6 is a certified copy of the judgment therein. This was a suit for recovery of Rs. 18,163-81 in enforcement of the mortgage which is said to cover the property now in question.

(3.) The appellant, as one of the judgment-debtors, filed the application, out of which this appeal arises, for setting aside the sale alleging that there was a material irregularity in the procedure adopted in bringing the property to sale, that there was not due service of requisite notice on him, that the sale notice Under Order 21, rule 66 was not served on him, that the sale held without his knowledge and with out the terms of proclamation being drawn up properly was invalid, that the house in question was worth nearly Rs. 30,000 and that, therefore, he suffered a substantial injury. The 1st respondent (decree-holder) denied all these allegations and stated that the house was not worth more than Rs. 13,000, that the price realised in Court auction was proper and that there was no substantial injury suffered by the appellant. He also stated that there was due service of notice, including the notice under Order 21, rule 66. It was further stated that the appellant had tried his best to delay and defeat the claims of the decree-holder and when he failed in his attempts, he had, as a last resort, filed the present application, which lacked in merits and was liable to be dismissed.