AKELLA KASAMMA Vs. PENUGONDA BRAMARAMBA

JUDGEMENT

(1.) These are three connected civil miscellaneous appeals preferre d by the appellant, the purchaser of equity of redemption against the orders of the Subordinate Judge, Visakhapatnam in E.A. No. 691 of 1961 in E.P. No. 25 of 1948 in O.S. No. 14 of 1935 and the consequential order confirming the sale in E.P. No. 25 of 1948 and against the order in O.P. No. 37 of 1960 for scaling down the debt under sections 8 and 19 of Act IV of 1938 respectively. E.A. No. 691 of 1961 out of which C.M.A. No.118 of 1962 arises was filed by the appellant, the purchaser of equity of redemption under Order 21, rule 90, Civil Procedure Code for setting aside the sale held by the Court on 2nd December, 1959. It was the case of the appellant that the sale was vitiated by material irregularity and fraud in publishing an4 conducting the sale and that when an application was made under section 20 of the Madras Agriculturists Relief Act, the Court had no option but to stay the sale and the sale held in consequence thereof suffers from material irregularity vitiating the sale itself. It is also contended before us that inasmuch as the learned Subordinate Judge, had scaled down the debt by his order dated 7th March, 1962 in O.P. No. 37 of 1960 he erred in law by confirming the sale on the same date, and that the confirmation of the sale is a material irregularity.

(2.) The case of the first respondent-decree-holder is that the sale held on 2nd December 1959 is not vitiated by fraud or material irregularity in publishing or conducting the sale and that the appellant although was not the judgment-debtor in the decree was served with notices and was represented by an Advocate who had also filed a counter and that it was only after hearing the objections and over-ruling the objections raised that the Court ordered the sale. The appellant was also given another opportunity to amend the execution petition pursuant to a compromise decree of the High Court and to state his objections, if any and he had not chosen to file any objections and that there is no illegality in holding the sale. It is also alleged and the petitioner had once made an application for scaling down the debt and that application was dismissed by the lower Court and that the order of the lower Court was confirmed by the High Court. On these facts the learned Subordinate Judge found that there was no material irregularity or fraud in publishing or conducting the sale and dismissed the application with costs. The learned Counsel for the appellant Mr. Venkatarama Sastry has argued that the lower Court erred in law in holding the sale on 2nd December, 1959 when an application for granting stay under section 20 of Act IV of 1938 was pending before him on the same date, that having allowed O.P. No. 37 of 1960 and scaled down the debt by his order dated 7th March, 1962, it went wrong in dismissing E.A.No. 691 of 1961 on the same date and that the confirmation of sale of all the items is not in conformity with law inasmuch as the decree debt after it was scaled down on 7th March, 1962, has been considerably reduced and that the confirmation of sale of a few items would have been sufficient to satisfy the scaled down debt. It is also pointed out by Mr. Venkatarama Sastry that even by the date 15th September, 1961 the appellant had deposited Rs. 6,800 which is more than the decree debt of Rs. 6,275-50 after it was finally scaled down.

(3.) Mr. Rajeswara Rao, the learned Counsel appearing for the respondents argued that there was no stay petition pending when the sale was held at 4-30 P.M. on 2nd December, 1959 as by 4 P.M. that day application (E.A. No. 474 of 1959) for stay of the execution of the decree was dismissed by the Subordinate Judge and the appeal preferred against that order was also dismissed by the High Court in C.M.A. No.of 518 of 1959. It is on this basis that Mr. Rajeswara Rao pointed out that section 20 of the Madras Agriculturists Relief Act has no application as the remedy of the appellant was only under section 23-A of the same Act. It is also pointed out by Mr. Rajeswara Rao that A.A. O. NO. 466 of 1954 to which the appellant was a party as 4th Respondent ended in a compromise whereby it was agreed that the amount due to under the mortgage decree in O.S. No. 14 of 1935 should be declared as Rs. 19,000 which should be recovered from the mortgaged property and it is pursuant to the compromise decree that the properties were brought to sale and therefore the appellant cannot now question the validity of the sale as whatever rights he enjoys or possesses are those of the judgment-debtor in whose shoes he has stepped in. Having regard to the contentions of both sides, it may be necessary in the first instance to see whether the learned Subordinate Judge held the sale in spite of the pendency of an application E.A. No. 474 of 1959 under section 20 of the Madras Agriculturists Relief Act. Section 20 of the Act recites :