K MUNEMMA Vs. J VEERABHADRAIAH

JUDGEMENT

(1.) The decree holder is the Revisionist. The petitioner's husband obtained a money decree against the respondent in O.S.No.291/1976. During the pendency of the suit, the immovable properties of the respondent-judgment debtor were attached under Order 38 Rule 5 of the Code of Civil Procedure. The deceased-decree holder filed OEP 19/1983 for recovery of the decretal amount of Rs.5,393-95 ps. by selling the already attached immovable properties, that is, the agricultural lands of the respondent-judgment debtor to the extent of Ac.5-86 Cts. of dry land out of the attached immovable properties. The respondent-judgment debtor remained absent after service of notice of execution and was set ex parte on 29-11-1983. During the pendency of the execution proceedings, the petitioner's husband died and she was substituted in place of her husband, that is, the deceased-decree holder. The respondent filed an application EA 54/1985 on 28-3-1985 for setting aside the ex parte order dated 29-11-1983. During the pendency of the execution application, a sale notice was allegedly issued which was served on the wife of the respondent on 15-12-1984. Thereafter, the Item No.1, that is Ac.5-86 Cts. of dry land out of the attached immovable properties of the respondent was put to sale by auction on 29-3-1985. The Amin had put the valuation of the item No.l in question at Rs.8,000/- at the time of attachment of the same on21-4-1976. On the date fixed for sale, that is, on 29-3-1985, the executing Court reduced the upset price of Rs.8,000/- to Rs.6,300/- on the application of the decree holder in E.A. No.58 /1985. On the same day permission to participate in the auction was given by the executing Court to the petitioner-decree holder under Order 21 Rule 72 of the Code of Civil Procedure. EA No.54/1985 filed by the respondent for setting aside the ex parte order was rejected by the executing Court on 29-3-1985 only. Later on the same day, that is to say, on 29-3-1985, the property was put to sale by auction in Court precincts and 4 persons participated in the auction. The bid of the petitioner-decree holder for Rs.7,000/- was accepted by the executing Court being the highest bid and the petitioner-decree holder deposited the balance amount of the auction money after getting the decretal amount of Rs.5,393.95 adjusted.

(2.) The respondent filed E.A. No.109/1983 under Order 21 Rule 90 read with Section 151 of the Code of Civil Procedure for setting aside the sale on the ground that the value of the sold property was between Rs.25,000/- to Rs.30,000/-, that it was sold at a low price, that no proper publication and proclamation was done, that his sons also got equal shares with him in the attached property which was ancestral, that no sale notice was validly served on him, that no notice was given to him before permission to participate in the auction was given to the decree holder, that his application for setting aside the ex parte order-was rejected without enquiry and that material irregularities have been committed in conducting the sale. The petitioner objected the application alleging that the respondent had not filed any appeal against the dismissal of his petition for setting aside the ex parte order, that the sale was conducted after due notice and publication and that the sale proceedings were legal. All the adverse allegations have been denied by the respondent.

(3.) The executing Court rejected the application of the respondent holding that the sale was legal as auction was conducted properly.