G SUBBAYYA Vs. A LAKSHMANA SWAMI

JUDGEMENT

(1.) One Gunukula Naidu is the judgment-debtor in Small Cause Suit No. 600/67. His properties were sold in execution, implead ing the petitioner as his legal representative. The petitioner filed E A. 251/70, under Order 21 Rule 90 C.P.C. to set aside the sale dated January 4,1969. One Chunduri Venkata Lakshminarasimbam was the decree-holder. On his demise, respondents 2 and 3 were brought on record to represent his estate. The first respondent is the auction purchaser thereat. The application was dismissed and on appeal it was confirmed.

(2.) The admitted facts are that Chunduri Venkata Lakshminarasimham laid the suit, S.C. No. 600/67 which was decreed exparte on October 7, 1967. Thereat, no personal service was effected on the principal debtor Gunukula Naidu. Lakshminarasimham laid E.P. 144/68 on February 22, 1963 to bring to sale the two items of the E.P, Schedule properties. The first item is an upstair building situated in the busy market area of Narsapur town and the second item is AC. 11-00 of land situated in Poduru village hamlet of Nidammarru in Krishna District. The E. P. Amount is Rs. 674-95 ps. The suit was decreed for Rs. 463/-. The two items were sold on January 4, 1969 for Rs. 2,250/- subject to a mortgage for Rs. 2,225/-. The sale was confirmed on February 6, 1969 and possession was sought to be delivered on April 12, 1969. The dispute started thereafter. According to the petitioner, he is residing at China gollapalem in Krishna district. One Gunukula Simha Lakshmamma, an agnate of Gunukula Naidu laid the suit, OS. No. 1/68. Thereat the petitioner resisted the claim for the plaint schedule properties. Therein the suit notice and summons in the suit were served on him at China gopallem. As he resides at China gollapalem, he gave po wer of attorney to one M. Omkaram to look after the litigation. On April 12. 1969. when the bailiff came to take delivery of possession, Mr. Omkaram objected to deliver of possession and the bailiff went back. His G. P. A. sent word to him through one A. Krishna Murthy (P. W. 2), father-in-law of Omkaram, of the unsuccessful attempt to take possession of item-1 building at Narsapur. Then the petitioner came and made enquires in the third week of April 1969. His enquiries revealed that the property was sold exparte, without notice to him. Therefore, he filed the application on May 2, 1969, to set aside the exparte sale. On the same day the executing court dismissed the application in limine. The petitioner then filed CRP No. 938/69 and also CPM No. 7424/69 for stay of delivery of possession. This Court on January 2,1970 granted conditional stay subject to the petitioner depositing the sale warrant amount. The petitioner, pursuant thereto, deposited Rs, 694-75 ps. Ultimately, the CRP was allowed by this Court and remanded the matter to enquire on merits whether the petitioner filed the E.A. within 30 days from the date of his knowledge. Then enquiry was conducted Two persons including the petitioner were examined on behalf of the petitioner and nine persons have been examined on behalf of the respondent. The decree-holder and the auction purchaser also contested the E. A. The executing Court dismissed the application on April 30, 1981, holding that the paitioner did not establish the actual date of his knowledge. It also found that the property though was sold for inadequate consideration, it is not a ground to set aside the sale. On appeal, it was confirmed. Thus this revision.

(3.) As stated, the small cause decree is an exparte decree and that no personal service in the execution was effected on the petitioner. The petitioner is residing at Chinagollapalem ia Krishna District. Item No. 1 building is situated at Narsapur town and Item No. 2agricultural lands are situated at Poduru in Krishna district. Notice in the execution proceedings was taken to the address at item No. 1 house at Narsapur. After substituted service, he was set exparte and the property was sold. Sri C.V. N. Sastry, learned counsel for the petitioner contended that when the notice was not personally served on the petitioner, under Order 5, rule 19 CPC. it is for the decree-holder to establish that due service was effected. That burden is on the respondent and was not discharged. He relied on Parasurama vs. Appadurai 1. He also placed strong reliance on a Danka Syed Be and others vs. C. Pyari Jani 2. He next contends that the building is worth about Rs. 10,000/- and the lands are worth about Rs. 8,000/- and the E. P. amount is hardly less than Rs. 1,000/-, that the decree-holder is aware that the petitioner is residing at Chinagollapalem but he did not take out personal notice to the petitioner to that address; thereby the decree-holder colluded with the auction purchasers and they both played fraud on the court. When the attempts of the auction purchaser to purchase the property became abortive, by playing fraud on the petitioner and the Court, the property was sold for inadequate consideration as found by the appellate court. Therefore the sale is vitiated on account thereof.