GANAMMA Vs. KETIREDDI AND FIVE ORS

JUDGEMENT

(1.) This is an appeal by the petitioners judgment-debtors, against an order dismissing their petition under Order XXI, Rule 90, Civil Procedure Code. The majority of the grounds on which the publication and conduct of the sale were impugned were rightly held unsustainable by the lower Court, because they either had been or might have been taken in the proceedings for framing proclamation, of which the petitioners had notice, and so far as they were taken, were either not established or were not material. We therefore can confine ourselves to two points, (1) the lower Court's failure to enquire into the allegation that the sale was not proclaimed in the village, (2) its conclusion, adopted from a previous order, that no publication at the Collector's office was required, because the property was not ryotwari land.

(2.) That previous order is, in fact, material on both points, because as regards publication in the villages also the conclusion in it was adopted, no further enquiry being held. It was passed on a previous petition by the present petitioners, Execution Application No. 71, dated 2 April, 1921, in which publication in two newspapers was asked for and also a postponement of the sale until 9 July 1921, apparently after the vacation. The sale had been fixed for 4 April 1921 and the petitioners object to gain time was sufficiently clear. In spite, however, of the decree-holder's opposition, referred to in the diary in the record, to a postponement and his presumable readiness to support the sale in case of proceedings under Order XXI, Rule 90, the lower Court took the. exceptional course of allowing the sale to continue, but at the same time holding an enquiry into the validity of the proclamation, concluding the sale only when that enquiry had ended in the decree-holder's favour. That enquiry included the taking of evidence as to the publication in the village, which had been denied in the affidavit accompanying the petition; and the decision that the proclamation was duly published has been adopted in the order before us.

(3.) One ground, on which this adoption has been supported, is that the lower Court merely utilized the evidence already taken, as though the previous proceeding during the sale had not been completed, and based its present finding on it. But that does not correspond with the facts, that the previous proceeding was completed by the refusal to adjourn the sale and that the lower Court does not now profess to have applied its mind to the evidence or to have done more than adopt the previous decision.