GADIGAPPA CHANBASAPPA MALKARJUN Vs. SHIDAPPA GURUSHIDAPPA YALEHALLI

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The few facts, which have a bearing on the points arising in the appeal, may be briefly stated.

(2.) A consent decree was passed in May 1909. The execution proceedings were transferred to the Collector. Certain im-moveable property of the judgment-debtor was sold on June 9, 1914, and purchased by the auction-purchaser who is now represented by his heir the respondent No. 1. The judgment-debtor applied to the Mamlatdar on July 4, for setting aside the sale and deposited the amount required by rule 89 of Order XXI of the Civil Procedure Code. The Mamlatdar had no authority, under Rule 17 of the rules then in force relating to sales by the Collector, to accept this application. But instead of referring the applicant to the civil Court he accepted the deposit and asked the applicant to appear before the civil Court on August 8. He sent the deposit and probably the application also to the Court: but that application, it is stated to us, is not on the present record. The judgment-debtor appeared before the Court and made a fresh application on that day to the Court for setting aside the sale. On this notices were issued.The auction purchaser agreed on September 24, that the sale might be set aside; but as the decree-holder was not served a fresh notice had to be issued for which apparently owing to ignorance; no bhatta was paid. The application was accordingly dismissed for default. The judgment-debtor appealed to the District Court from this order. This appeal was beyond time, but the delay was condoned. The auction-purchaser appeared at the hearing but the decree-holder did not. After hearing the parties who were represented the learned District Judge set aside the order under appeal and directed that the application to set aside the sale should be proceeded with. The auction-purchaser appealed to this Court and in that appeal (Second Appeal No. 1046 of 1916) an objection was taken by the judgment-debtor that no appeal lay. But the Court held that the order was made under Section 47, Civil Procedure Code, in execution proceedings and disallowed the objection. On the merits the appeal failed and the decree of the District Court was confirmed with costs on July 19, 1919.

(3.) In the Court of the first instance finally the decree-holder did not appear though he was served and the auction-purchaser's heir who appeared in person made no defence, In the result the sale was set aside on July 9, 1921.