KORAPALU HENGSU Vs. GOWRI HENGSU

JUDGEMENT

(1.) The appellants had a mortgage decree with costs for Rs. 5,578, in O.S. No. 22 of 1919, against the 1 respondent and seven others, on the file of the Sub-Court of South Kanara. The respondents 2 and 3 had another mortgage decree for Rs. 5,208, in O.S. No. 23 of 1919, against the same properties. The appellants brought the properties concerned in this appeal to sale and obtained permission of the Court, to bid at the auction, on condition that they deposited the sale price in Court. The sale commenced on 18 July, 1921, with an upset price of Rs. 3,250 and was continued on the following days and was knocked down, on 20 July, 1921, to the appellants pleader for Rs. 6,000. The Subordinate Judge afterwards set aside the sale, on the application of respondents 2 and 3 for the reason that the respondents did not get notice of the appellants application of 18 July 1921, to be allowed to bid. It was pointed out to him that the respondents did get notices in March, 1921, of the sale proclamation to which was attached a prayer that the execution creditors should be allowed to bid at the auction. These notices were served on respondents 2 and 3 by affixture, and one of them (2nd respondent) was present at the auction and only abstained from bidding, because he had been unable to raise enough money. The Subordinate Judge, upon our requisition, has now returned findings : (1) that all the parties concerned had notice of the execution petitioners application to bid; (2) that the properties were sold for an inadequate price, as they are worth not less than Rs. 12,000, Both sides have filed memoranda of objections to the finding; but, as there is no substance in any of the objections, we must accept the findings. The facts of this case are unlike those in Thathu Naick V/s. Kondu Reddi [1909] 32 Mad. 242, where fraud and breach of the conditions, upon which the decree-holder was allowed to bid for the property were found, the decree-holder having bid in a false name, in order to hide the fact that the bid was below the minimum amount, for which the Court had permitted him to bid.

(2.) Here the decree-holders applied for leave to bid, in February, when they took out execution, and again in March, when notices were issued to all the parties for settling the terms of the sale proclamation, and lastly a third time in July, at the time of sale. The decree-holders in O.S. No. 23 of 1919 (respondents 2 and 3) certainly had notice of the appellants application, under Order 21, Rule 72, on the second of these occasions, and they must have been aware of it, on the third occasion, as one of them was present at the auction and they are related to each other. An affidavit, such as is required by Rule 153 of the Civil Rules of Practice, was attached to the last application, for leave to bid. It does not appear that this formality was complied with, on the earlier occasions.

(3.) Mr. Ananthakrishna Aiyar, for the respondents, argued that this amounted to an irregularity. I am unable to treat it as such. The rules only require that the other parties should be given notice of the application. The affidavit is for the Court's information, and the decree-holder is not required by the rules to supply the other parties with a copy of it. Thus, it has not been made out that there was any irregularity in publishing, or conducting the sale.