P ACHYUTARAMAYYA Vs. TRAMAMMA

JUDGEMENT

(1.) THIS is an appeal against the order of the learned Subordinate Judge of Bezwada dismissing the appeal filed against the order of the District Munsif of Bezwada dismissing the petition of the judgments debtor in O.S. No. 210 of 1939 to set aside the sale of his house on the ground that the Court had no jurisdiction to sell the property. On the date on which the sale came on the judgment-debtor, defendant 3 in the suit filed a petition before the executing Court that he had presented a petition before the Debt Conciliation Board and praying that the sale may be stayed. That petition was dismissed by the Court after observing that the decree-holder's advocate stated that no such petition was filed before the Debt Conciliation Board, that not certificate as to the filing of that petition had been filed and that the District Munsif was convinced that the petition was not a bona fide one. The sale was held. Then this petition was filed to set aside the sale on the ground that it was held without jurisdiction. Two contentions were raised, viz., that the petition to the Debt Conciliation Board was not presented before the sale was held and that even if it was presented it would be of no avail as the debtor was not a person who was depending mainly upon agriculture for his livelihood and a petition by him was not maintainable. The appellant's contention was that he did file a petition before the sale was held and that it is not open to the executing Court to go into the question whether the petition was maintainable by him or not. On the first point the first Court has not given any finding. But the learned Subordinate Judge in para. 3 of his judgment observed that from the available evidence he thought that the sale was knocked down before the presentation of the petition before the Debt Conciliation Board. What the evidence is he has not referred to. But there is this fact that a petition was filed before the sale was held asking for stay of the sale and in that petition it was stated that the petition had already been filed before the Debt Conciliation Board. That the petition was filed before the Debt Conciliation Board on that day is not disputed before me now. If a petition was presented on the date of the sale and if the person who presented it also filed an affidavit accompanying the petition praying for stay of the sale on the ground that he had presented a petition and when no counter affidavit was filed in that petition, could it be said that that is not enough evidence to show that that petition must have been filed before the sale was knocked down? Admittedly the decree-holder was not present at the time when the petition was filed, for according to him no petition was presented. If no petition had been presented how did the decree-holder come to know about it? In these circumstances, when there was only the affidavit of the debtor before the Court, I am not able to see how the learned Judge came to the conclusion from the available evidence that this petition was presented subsequent to the knocking of the sale. I therefore do not think the finding of the learned Judge could be sustained in the absence of any evidence and in the face of the affidavit of the judgment-debtor. The only other point for consideration is whether the petition was not maintainable and whether it is a matter that can be gone into by the executing Court. There is absolutely no other material except the deposition received in evidence in the course of the appeal for deciding the question whether the petition was maintainable or not. Even in the affidavit filed by him with the petition for stay the appellant had described himself as one living on his inam. It is true he was also a clerk employed in a firm. But we have no evidence as to what his annual expenses come to and what proportion his income as an employee in the firm bears to the annual expenses of his family. From the mere fact that he was a clerk in a firm it is not possible to state that his main means of livelihood may not have been the income from his inam lands.

(2.) IN these circumstances I do not think on the materials before the Court it has been proved that the petition was not maintainable. Further as pointed out by my learned brother, Horwill J., in Sitaram V/s. Somappa ( 43) 30 A.I.R. 1943 Mad. 549, if a petition is filed even though information is not given to the executing Court, the sale is one held without jurisdiction and has to be set aside. IN these circumstances I find that the sale in question is void as being held without jurisdiction. I set aside the order of the lower Courts and instead allow the petition and set aside the sale, with costs in all the three Courts. Leave to appeal is refused.