MUTTALOORU BOJJANNA Vs. BOYA KRISTAPPA

JUDGEMENT

(1.) This is an appeal against the decision of Koman, J., and it raises the question of the extent of the inherent powers of the Court in dealing with a sale in execution of a mortgage decree. The appellant obtained a decree on a mortgage of 1929. The final decree was passed on 10th February, 1942. The part of the hypotheca with which we are now concerned was put up for sale on 2nd April, 1943, but there were no bidders and the sale was adjourned to the 19th April, 1943, when four items were sold, including items 6 and 9 with which we are now concerned. Both of these items were purchased by the decree-holder at a price slightly in excess of the upset price. Item No. 6 which is S. No. 440-B is of an extent of 103 acres 9 cents of dry land which the decree-holder valued at Rs. 200. The upset price fixed by the Court was Rs. 400 and the successful bid was Rs. 405. Item No. 9 is of an extent of 1993 acres which was valued by the decree-holder at Rs. 50, the upset price was Rs. 100 and the successful bid Rs. 102. The Court closed shortly after this sale and re-opened on the 7 June. On the 10 June, the sale of these two items 6 and 9 was confirmed and part satisfaction was recorded. On the afternoon of the day on which the sale was confirmed, the judgment debtor appeared in Court with the amount of the decree to get the sale set aside. But it was too late to make the deposit.

(2.) On the 30 June, 1943, that is to say more than two months after the sale and twenty days after the confirmation of the sale, the judgment-debtor filed the petition out of which these proceedings arise. The petition purports to be under Secs.47 and 151 and Order VII Rule 1 of the Civil P. C.. It scrupuloulsly avoids any reference to the provisions of Order 21, Rule 90 of the Code. It starts by reciting the bare facts, stating that the sale is a nullity having been effected by playing fraud on the Court as well as on the petitioner. Then it proceeds to set forth the particulars of the fraud. Firstly it is alleged that after the first abortive sale, the petitioner tendered to the decree-holder the amount of the decree ; there was a Panchayat on or about the 10 April, 1943 in which it was settled that the decree- holder should get correct particulars of the amount due from his vakil, get the sale adjourned to some other date after the holidays and take the amount in full satisfaction of the decree. It is alleged that when the properties came up for sale on 19 April, the decree-holder clandestinely and in defiance of the agreement, got the properties knocked down to himself for absurdly low prices, keeping back the facts from the knowledge of the debtor and his friends. Next it is asserted that the petitioner came to know of the fraud practised by the decree- holder " during the holidays " on enquiry from his vakil who wrote to him that he should come to Court with money on the 10 of June. Then it is alleged that the petitioner charged the decree-holder with fraud and the latter said that he would get matters rectified immediately after the reopening of the Court and that he failed to do so. Then the petitioner came to Court on 10 June, to deposit the money by way of abundant caution and to his surprise found that the sale had been already confirmed. On account of the fraud practised by the decree-holder, the petitioner was kept back from coming to the Court and the other bidders in the village also were kept back from attending the Court on the day of sale. It was also contended with reference to item 6 that the petitioner has no saleable interest in the land which contains a temple utilised by the public to whom free access is given. The profits of the land have been endowed for the maintenance and upkeep of the temple. The decree-holder is charged with having suppressed the fact that there is a temple which makes the land public property and as such inalienable. As to item 6 it is also said that it is worth Rs. 6,000, that the bid of Rs. 405 is grossly inadequate, the decree-holder has gained an unconscionable advantage and the sale is therefore a nullity.

(3.) It is to be noticed that the whole application is based on the alleged fraud in the matter of the Panchayat agreement for the liquidation of the decree and the postponement of the sale while inquiry was being made. The trial Court did not believe that story ; but the learned District Munsiff came to the conclusion that the major item, item 6 had been undervalued by the decree-holder by the omission of all reference to the temple constructed in the land the value of which is admittedly at least Rs. 700. No attention seems to have been given to the fact that if the temple was as alleged public property dedicated to a God it would not be the property of the judgment debtor, and, could not pass to the purchaser at the Court auction. However, the learned District Munsiff after pointing out that a petition to set aside the sale having regard to Order 21, Rule 90, of the Code would become barred on 7 June, 1943, that as it was a mortgage decree, the decree amount should have been paid on 10 June, 1943 before the sale was confirmed and that the judgment-debtor arrived at the Court on the afternoon of the day of the confirmation of the sale apparently owing to the bus arriving late, remarks that it is not unusual in such circumstances that the Court should set right the matters excusing the delay. The learned District Munsiff concludes that on account of the unfortunate delay in the arrival of the bus on the 10 June, and also on account of the fact that the decree-holder deliberately misled the Court in valuing the property, this is a fit case in which the Court should exercise its inherent power under Section 151 of the Code of Civil Procedure ; and for the ends of justice and to prevent abuse of the process: of Court it is essential that the sale should be set aside. The whole sale was therefore set aside.