THATHU NAICK Vs. KONDU REDDI

JUDGEMENT

(1.) The 1 plaintiff sues for the recovery of property purchased by him at a Court-sale in execution of a mortgage decree obtained by himself. The principal money due being Rs. 750 he obtained permission to bid at the sale to an amount not less than Rs. 1,500. The sale was held but neither he nor any one else made any bid: a month or two later another sale was held but again the property was not sold: at the third sale without asking for permission to bid he purchased in the name of the 2nd plaintiff for a sum considerably less than the principal money due on the mortgage. The sale was confirmed and possession delivered to the 2nd plaintiff under Section 319, Civil Procedure Code. The plaint alleges that delivery was under Section 318, and the delivery order and receipt are not on the record, but I take it for the purposes of this judgment, paragraph 12 of the plaint being ambiguous, that the 4 and 5 defendants are purchasers from the judgment- debtors pending the plaintiff's suit on his mortgage and have retained actual possession of the land ever since their purchase. The 1 plaintiff now sues to recover the land from them, and they resist him on several grounds of which one only has been dealt with by the Courts below. They have dismissed the suit, holding that the sale to the 1 plaintiff is void by reason of his having fraudulently purchased the property through the 2nd plaintiff for a smaller sum than he must have paid had he, acting on the permission given him by the Court, bid at the auction in his own name or openly by an agent.

(2.) I must assume that the 4 and 5 defendants did not know the truth before the institution of the present suit, and that the Court executing the decree was equally in the dark.

(3.) These being the facts I may clear the ground by stating that I do not think the fact that the sale has been confirmed affects the case. At the time of confirmation neither the judgment-debtors nor the Court had notice of any fact which would have caused the latter to refuse confirmation, and their ignorance was due to deceit practised by the decree-holder purchaser.