ABDUL NABI Vs. BENDAKAYALA ABDUL KARIM

JUDGEMENT

(1.) A question of law and practice arises in this appeal, as to whether an application for setting aside the execution sale can be filed within 60 days of the date of sale as per Article 127 of the Limitation Act (as amended by Act 104 of 1976) even though by that time the sale has been confirmed.

(2.) In the present case the decree-holder-auction purchaser who is the appellant before me filed O.S.No.148/72 on the foot of a mortgage and obtained a preliminary decree on 31-10-1973 and the final decree on 2-9-74. Then he brought the properties to sale and the sale was held on 13-10-1977. As no application was filed by the judgment debtor within 30 days of the sale, an order of confirmation of sale was passed on 16-11-77. The judgment-debtor thereafter filed the present E.A., on 28-11-1977 for setting aside the sale under Order 21, Rule 90 C.P.C. read with Section 151, C.P.C. In the application filed under Order 21, Rule 90, C.P.C., the judgment-debtor clearly stated that even though the sale was confirmed on 16-11-1977 he could still file the application for setting aside the sale within 60 days from the date of sale by reason of the amended provisions of Article 127 of the Limitation Act, 1963. The judgment-debtor further stated that the property was subject to an earlier mortgage and also that the same fetched a very low amount as there was no proper publication in the manner required by law. The said application was resisted by the appellant-decree- holder. During the course of the hearing of this petition, it came to light that even by the date of sale on 13-10-1977, out of this extent of 7 acres, an extent of ac. 6-50 cents had already been acquired by the Government under the provisions of the Land Acquisition Act for assignment as house sites for Harijans. It is clear from the award, Ex.A-2, that the notification under Section 4(1) of the Land Acquisition Act was issued by the Government on 15-7-1977 and that the award was passed on 30-9-1977. Ex.A-2 shows that the provisions of Section 5-A of the Land Acquisition Act were dispensed with for the purpose of taking possession urgently. The plan, Ex.A-3, filed by the judgment debtor would show that out of the property which is the subject matter of the present petition viz. a total of 7 acres, an extent of ac. 6-50 cents was taken over by the Social Welfare Department. What remained was a house bearing door No: 26/597-B and a well belonging to the judgment-debtor who, it is alleged, is an agriculturist. The house and site are in the village. It is clear from the award of the Land Acquisition Officer that the ac. 6-50 cents belonging to the judgment-debtor secured a compensation amount of Rs.74,750/-. I may point out that the Court sale in the present case in respect of the ac. 6-50 cents was only for a sum of Rs.24,000/-, the decretal amount being Rs.20,1977-.

(3.) The Court below came to the conclusion that In view of the amended provisions of Article 127 of the Limitation Act, the application filed by the Judgment-debtor under Order 21, Rule 90, C.P.C., was maintainable even though by that date the sale was confirmed. The Court also thought that the sale was for a gross under-value of Rs.24,OOO/- while even ac.6-50 cents out of the property fetched a compensation amount of Rs.74,750/-. In fact, that was the amount fixed by the Land Acquisition Officer. There can be no doubt that if the parties had obtained a reference to the Civil Court under Section 18, the compensation would have been substantially increased. The Court, therefore, thought that the sale was liable to be set aside on the ground of gross under-valuation on account of the material irregularity. The Court also found that a prior - mortgagee was not impleaded and rejected the contention that that was a collusive mortgage. On these grounds the Court set aside the sale.