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CASE NO.: Appeal (civil) 2269  of  1981

PETITIONER: KADIYALA RAMA RAO

       Vs.

RESPONDENT: GUTALA KAHNA RAO (DEAD) BY LRS & ORS.

DATE OF JUDGMENT:       01/01/2000

BENCH: S.B.Majumdar, U.C.Banerjee

JUDGMENT:

BANERJEE, J. L.....I.........T.......T.......T.......T.......T.......T..J

     This  appeal  pertains  mainly  to  the  question   of validity of court sale in regard to immovable property.  The facts  in  the  appeal may briefly be adverted in  order  to appreciate the issue involved effectively.

     The situation is now thus by reason of the legislative changes  as above is clear enough to indicate that an  order passed  by  court  subordinate  to the  High  Court  in  its appellate  jurisdiction,  if it is not appealable, would  be within  the  ambit  of Section 115 of the Code  and  thus  a revisional  application would be maintainable.  A revisional application  against an order which is not appealable either before the subordinate court or the High court would also be maintainable.   Let us now at this juncture however, come to the  contextual  facts  in  order to  appreciate  the  issue involved  more  effectively.  The petitioner is  a  stranger auction  purchaser of a house property sold in court auction on  31st July, 1978 in pursuance of a mortgage decree  dated 4.6.1975  passed  in C.S.No.1245 of 1973 on the file of  the court  of District Munsif, Rajamundhry, Andhra Pradesh.  The court  sale of the house property was effected upon  payment of  25%  of  the sale price offered by the  highest  bidder. Subsequently, the sale was confirmed on 31st July, 1978 upon payment  of  the full purchase price.  On 26th August,  1978 the respondents herein filed an application to set aside the auction  sale  dated 31st July, 1978.  The learned  District Munsif  Rajamundhry, however by an order dated 31st  August, 1978  rejected the said application and thereafter confirmed the  sale and disposed of the Execution Petition on the same day  and a cheque for Rs.4420/- was issued in favour of  the Advocate  for  the  decree  holder and  thereupon  the  full satisfaction  was duly recorded.  It is significant to  note that  the  appellant took delivery of the house property  on 9th  November, 1978.  Subsequently, on an application  filed under  Section 115 of the Code of Civil Procedure before the High  Court  of  Andhra   Pradesh,  the  respondents  herein

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obtained  an  interim stay of the proceedings on  22.11.1978 upon  deposit of half of the decretal amount.  On 4th April, 1980, the High Court however further directed the respondent to  deposit the remaining half of the decretal amount.   The records  depict that the respondents duly complied with  the orders  of  deposit.  The Revision Petition thereafter  upon hearing  was  allowed  by the High Court and  the  appellant herein  subsequently  filed  a  Review  Petition  which  was however, dismissed by the order dated 22nd December, 1980 by the  Learned  Single Judge of the High Court and  hence  the Appeal  before  this Court.  To appreciate  the  contentions raised  in  the matter, it would however, be  convenient  to note  the  provisions  of Order 21 Rule 90  which  reads  as below:  90 [S.311] (1)Where any immovable property has been sold   Application  to  in  execution   of  a  decree,   the decree-holder, or set aside sale the purchaser, or any other person  entitled  to  on  ground  of  share  in  a  rateable distribution  of assets, or irregularity or whose  interests are  affected by the sale, may fraud.  apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it.

     (2)  No  sale  shall  be set aside on  the  ground  of irregularity or fraud in publishing or conducting it unless, upon  the  facts  proved, the Court is  satisfied  that  the applicant has sustained substantial injury by reason of such irregularity  or  fraud.  (3) No application to set aside  a sale  under  this rule shall be entertained upon any  ground which  the applicant could have taken on or before the  date on   which   the  proclamation  of   sale  was   drawn   up. Explanation:   The mere absence of, or defect in, attachment of  the  property  shall  not, by itself, be  a  ground  for setting aside a sale under this rule.

     On  a  plain  reading  of the  provisions  thus  three several  factors emerge and which ought to be taken note  of in  the  matter  of setting aside the sale of  an  immovable property,  viz.,  (i)  material irregularity  and  fraud  in publishing  or conducting the sale;  (ii) the Court  dealing with such an application is satisfied that the applicant has sustained   substantial   injury  by   reason  of  such   an irregularity  or  fraud;  and (iii) no application would  be entertained  upon  a ground which the applicant  could  have taken  on  or  before  the  date   of  drawing  up  of   the proclamation of sale.

     The  only issue was of saleable interest for a  period of  15  years  since the deed of sale has  executed  by  the Municipality   of  Rajamundhry   and  the   Judgement-Debtor contained  a condition that the property cannot be alienated by  the Judgment-Debtor for a period of 15 years.  It is  to be  noticed  at  this  juncture that  question  of  saleable interest  does not come within the ambit of Order 21 Rule 90 and  as  such the Judgment-Debtor have not locus  standi  to apply  to  the  Court for setting aside the  sale.   Statute recognizes such a locus standi only in the event of material irregularity  or fraud and not otherwise.  Apart  therefrom, saleable  interest  can only be challenged by the  purchaser and not by the Judgement- Debtor since the purchasers right would  otherwise  be  clouded therewith by reason  of  there being  no  saleable interest in the property so far  as  the Judgent-debtor  is concerned.  Order 21 Rule 91 is  specific on  this  score  and a right has been conferred  on  to  the purchaser  only.   Let us now at this juncture  recount  the order  against which the Revision Petition was moved  before

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the  High Court.  The Order is set out herein below:  Heard Mr.   P.M.  Gandhi, perused the petition.  As stated by  Mr. P.M.Gandhi,  petitioners  who have had sale notice  did  not raise the present objection regarding the nature of property raise  i.e., that it is not saleable.  However to give  them an  opportunity to avoid the sale by paying the E.P.  amount their  counsel if asked whether they are willing to pay  the E.P.   amount.   He is not able to give any positive  reply. Petition  is  prima facie devoid of bonafides besides  being belated.  Hence rejected.

     At  this  juncture  the   Andhra  Pradesh  and  Madras Amendment Order 21 Rule 90 are also to be noticed.  The said amendment  reads  as below:  Provided that the  Court  may, after  giving notice to the applicant, call upon him  before admitting the application, either to furnish security to the satisfaction  of  the  Court  for an amount  equal  to  that mentioned  in  the sale warrant or to that realized  by  the sale, whichever is less, or to deposit such amount in Court: Provided  also  that the security furnished or  the  deposit made  as  aforesaid shall be liable to be proceeded  against only  to  the  extent  of the deficit on a  re-sale  of  the property  already  brought to sale. In the present  proviso after the word Provided insert the word further.

     It  is  on this score the Learned District Munsif  has offered  such an opportunity to avoid the sale by deposit of money,  as  such  there is due compliance  thereof,  of  the requirement  of law in terms of the Andhra Pradesh Amendment to  the  provisions  of  the Code  as  noticed  above.   The contextual  facts  depict  that the  Revision  Petition  was dismissed  on  11th  April,  1980 that  is  long  after  the completion  of  sale which has been totally ignored and  the Learned  Single Judge as a matter of fact has proceeded on a total  misconception of facts.  Be it noted that at no point of  time,  any  question  was raised as  regards  the  total purchase  price and as such, a faint attempt on the part  of the respondent herein before this Court to denounce the sale on  the  ground of quantum of purchase price, in  our  view, ought  not to be permitted to be raised before this Court at this   juncture.   The  Learned   Singe  Judge   erroneously proceeded  on certain misconception of facts as also of  law by  reason of the factum of challenge of sale on the  ground of saleability.  Order 21 Rule 90 does not envisage an issue of  saleability and the Learned Single Judge was in error in introducing  such  a concept under Order 21 Rule 90  of  the Code.   In any event as noticed above no saleable interest can  be agitated by the purchaser only in terms of Order  21 Rule  91  and  not by the Judgment-debtor.  The  grounds  of challenge  is  specific  in  the  provision  itself  namely, material  irregularity  or fraud and in the absence  of  any evidence  or  even  an allegation in regard thereof  in  the petition under Order 21 Rule 90, question of introduction of the  concept of no saleable interest or another  opportunity to  the judgment-debtor does not and cannot arise.  In  that view  of the matter, this Appeal succeed.  The order  passed by  the  Learned  Single Judge as impugned  in  this  Appeal stands  set aside and quashed and in that view of the factum of the position of the property being with the purchaser, we are  not  inclined  to issue any directive in  that  regard. There is no order as to costs.