JANNALAGADDA SEETHARAMAYYA Vs. KAJA SIVARAMAKRISHNA RAO

JUDGEMENT

(1.) A mortgage,suit was filed in the Court of the District Judge of Kistna and he transferred the suit for trial to the Court of the Subordinate Judge of Masulipatam. One of the parties to the suit was the Co-operative Building Society, which was impleaded as the eighth defendant. There were two mortgages in favour of the Society and the first was embodied in the second. The Society remained ex parte and in just over two months after the suit had been filed, it brought the property to sale in execution of an award by the Registrar and it was purchased by the present respondent. He did not however apply to be made a party in the mortgage suit and the transfer to him was of course, subject to the doctrine of Us pendens. In execution of the mortgage decree, the decree-holder sought to bring all the properties to sale including a house in Bezwada which is the subject of this appeal--and two items of land within the jurisdiction of the Subordinate Judge, Masulipatam and of the District Judge, Kistna. The decree-holder then applied to the Subordinate Judge to transmit the decree for execution to the District Court. This was done and proclamation was ordered. Some days before the sale took place, the respondent put in an application asking the Court not to sell the house at Bezwada as he hoped that the sale of the lands would be sufficient to satisfy the, debt. The Court adjourned the sale for a few days in order to hear this application and when it came up for hearing it was not pressed and was dismissed. Sale of the house and the lands was consequently ordered, but only the Bezwada house was sold. Subsequently, the respondent put in an application under Order 21, Rule 90 asking the Court to set aside the sale on the ground of material irregularity and also on the ground that it had no jurisdiction to sell the house at Bezwada. The District Judge upheld both these contentions. He held that he had no jurisdiction to sell the house and that there was a material irregularity in that no mention had been made of the prior mortgage in the proclamation, as was necessary under Order 21,rule 66, Civil Procedure Code and that the respondent thereby sustained loss; because if the prior mortgage had been disclosed, the upset price would have been lower and the respondent himself would have bid and secured the property for himself. He therefore set aside the sale.

(2.) The learned advocate for the appellant has raised a number of points. He says that there was no material irregularity and that even if there was, no injury was sustained. Secondly, he says that the Court had no jurisdiction in an application under Order 21, Rule 90 to consider the question of its jurisdiction to bring the Bez-wada house to sale. Thirdly, he contends that because the respondent, in his application on the day before the day fixed for sale, did not refer to the want of jurisdiction in the Court, he is precluded by principles analogous to those embodied in Section 21, Civil Procedure Code, from contending in later proceedings that there was want of jurisdiction in the executing Court. Finally, he contends that the District Court had jurisdiction to sell the house.

(3.) Order 21, Rule 66(c) requires that the proclamation should contain mention of any prior incumbrances; and so the learned District Judge was perhaps justified in holding that there was a material irregularity; but I do not agree with the learned District Judge that it thereby follows that the respondent sustained substantial injury. He has not attempted to prove that he would have bid at the sale if the upset price had been lowered or that any other person was prepared to bid. It therefore seems to me that there was no basis of fact upon which the learned Judge could come to the conclusion that the respondent sustained substantial injury by reason of the irregularity.