SANKARA PURSA Vs. GOVINDA BHATTA

JUDGEMENT

(1.) This second appeal is preferred against an order of the District judge of South Kanara setting aside an execution sale under Section 47, Civil: Procedure Code, on the application of the judgment-debtors.

(2.) The facts necessary to be stated for the purpose of the appeal are these. On with May, 1931, the property forming the subject-matter of this appeal was mortgaged by its owners to one Suppi Hengsu who died leaving 9 children governed by the Aliyasanthana law. Under a family karar (Ex. D-1), dated 23 September, 1931, the mortgage debt along with some other property was kept apart for the seven sons of Suppi Hengsu and two of them namely, Aitha Purusha and Sankara Purusha were appointed adaltedars (managers) on behalf of all the seven sons with power to realise the mortgage debt. These two individuals filed a suit on the mortgage, O.S. No. 84 of 1934, on the file of the Court of the Subordinate Judge of South Kanara and obtained a final decree for sale on 7 September, 1935. On the application of the two decree-holders, one of them, Aitha Purusha, was appointed a receiver of the mortgaged properties., and he took possession of the same on 12 February, 1936. The receiver has remained in possession ever since. E.P. No. 269 of 1940 was filed by the two decree-holders for sale of the hypotheca in execution of the mortgage decree. Notice of the sale proclamation went to the judgment--debtors and, apparently on their objection, the decree-holders were directed by an order made on 35 November, 1941, to deduct a sum of Rs. 359-7-3 from the amount claimed by them, the said sum representing the rents and profits of the mortgaged properties received by one of the two decree-holders who was in possession as receiver. Leave to bid at the Court sale and set-off the decree amount towards the price, was granted to the decree-holders under Order 21, Rule 72, Civil Procedure Code, after notice to the judgment- debtors. The mortgaged property was purchased by the decree-holders on 25 November, 1941, for a sum of Rs. 2,020 and this sum was set-off against the amount of the decree. The judgment-debtors filed an application under Section 47 and Order 21, Rule 90, Civil Procedure Code, impugning the Court sale on various grounds, of which the only one now material, is that, the purchase by the two decree-holders one of whom was a receiver, without obtaining the express leave of the Court in that behalf, was liable to be set aside on that very ground. The Courts below set aside the sale relying on the authority of a decision of this Court in Subramanyam V/s. Damavarapu Reddi .

(3.) This civil miscellaneous second appeal is preferred by the decree-holder (purchaser) other than the receiver and Mr. T. Krishna Rao appearing on his behalf-states that his client was not the receiver and is therefore unaffected by the rule laid down in Subramanyam V/s. Damavarapu Reddi He further contends that the Court was fully aware at the time it granted leave to bid to the two decree-holders, that one of them was a receiver of the property and that the judgment-debtors were also aware of the application for and the grant of leave to bid and purchase the property. He contends that the purchase was openly made and for a proper price. Finally he states that the purchase at the Court sale which was really for the benefit of the family represented by the two decree-holders was not vitiated by the disability of one of the decree-holders to purchase the property at the Court sale.