PUTTAPARATTI ATCHAMMA Vs. T BAYANNA

JUDGEMENT

(1.) This revision, which is directed against the decree and order in C. M. A. 3/62 on the file of the learned District Judge, Anantapur, has been referred to the Bench by Chandrasekara Sastry, J. as he then was, in view of the conflict between the decisions in Kondipalli Tatireddy v. Ramachandra Row, AIR 1921 Mad 402 and Govindarajulu v. Sivarama Krishnan, AIR 1953 Mad 822 on the one hand and Venkatalingam v. Ranganayakulu, ILR (1955) Mad 675 on the other on the question as to

(2.) The petitioners obtained a decree against the respondents, in O. S. 43/57 on the file of the District Munsif, Anantapur, on the foot of mortgage. Two houses belonging to the respondents were brought to sale in execution of that decree and were purchased by the petitioners themselves on 20-7-59. The first respondent, Bayanna, moved the executing court in E. A. 405/59 under O. 21, R. 90 and Sections 47 and 151 of the Code of the Civil Procedure for setting aside the said sale alleging (1) that the sale which was fixed for 17-7-1959 was adjourned without notice to the judgment debtors and bidders to 20-7-1959 with the result that it did not fetch a proper price, (2) that the permission granted to the decree-holders to bid at the sale is illegal and void as no notice of that application was given to him and also because the decree-holders managed to obtain the said permission by fraudulent misrepresentation to Court, (3) that he had no notice of the petition filed by the decree-holders for reduction of the upset price either, and (4) that there was mis-description of the property that was put up for sale and that as a result of the aforesaid fraud and irregularities in the publication and conduct of sale, he sustained substantial injury. The decree holders denied, in their counter, that there were any irregularities or fraud in the publication and conduct of the sale. The learned District Munsif held that the respondents had notice of the petition to reduce the upset price, that no notice was necessary in E. A. No. Nil of 1959 filed by the decree-holder for leave to bid as an earlier application E. A. 820/59 for a similar relief was allowed after notice to the judgment-debtors, that the alleged mis-description of property is of no consequence as the identity thereof was never in doubt having regard to the fact that it was described by boundaries and that the postponement of the sale from 17-7-1959, which happened to be a public holiday, to 20-7-1959, the next working day, is neither irregular nor illegal as all concerned were aware of this postponement. He accordingly dismissed the petition with costs. The learned District Judge, to whom the matter was carried in appeal with the court of first instance that the postponement of the sale from 17-7-59 to 20-7-59 or the wrong description of the property did not vitiate the sale adverting to the other objection based on the absence of notice to the respondents on the application for leave to bid, he concluded that the decree-holders managed to secure the leave by making a false representation to the court, that in their earlier application. E. A. 826/58 filed for the same purpose, notice was issued to the judgment-debtors when in fact this is not the case and that the order D/- 20-7-59, granting permission to the decree-holders to bid at the sale, is consequently illegal besides amounting to a material irregularity entitling the respondents to have the sale set aside without the need to prove that they suffered substantial loss. He accordingly set aside the sale following Raghavachariar v. Murugesa Mudali, AIR 1923 Mad 635 wherein it was held that

(3.) Learned counsel for the petitioners assailed at the outset and rightly too, the finding recorded by the court below that the order granting leave to bid is vitiated by fraud besides being illegal as, according to him, this conclusion is the result of certain erroneous and incorrect assumptions of fact. It is common ground that E. A. Nil of 1959 in which leave to bid was granted to the decree holders was filed on the same day on which the sale was held viz., 20-7-1959 and that the judgment-debtors had no notice of this petition. The learned Dist. Munsif observed that no notice was necessary to the judgment-debtors in E. A. Nil of 1959 as he thought that the earlier application, E. A. 826/59 filed for the same purpose by the decree-holders was allowed by the decree-holders was allowed after notice to the judgment-debtors when in fact that petition was dismissed as the sale scheduled to be held on 23-1-1959 was stopped. though the judgment-debtors were served with notice of that petition, as borne out by the certified copy of the order in that petition. While adverting to this mistake committed by the court of first instance, the learned Dist. Judge committed another and a more serious error but for which he would not have held that the order granting leave to bid in E. A. No. Nil of 1959 is vitiated by fraud. The moment he discovered and not allowed as was wrongly assumed by the court of first instance, the learned Dist. Judge jumped to the conclusion that