Vs. Hanumanth Krishnaji Bhide & Ors  INSC 972 (19 August 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 511 1996 SCALE (6)254
O R D
special leave petition arises against the judgment and order of the High Court
of Karnataka dated April
17, 1996. in MFA
No.146/96. The admitted position is that the father of the respondents had a
money decree in O.S.A.No.132/89. The Civil Judge vide decree dated January 12, 1994 granted a sum of Rs.2,50,000/- and
costs with future interest at the rate of 6% on all the defendants including
the petitioner. All were jointly and severally liable. Consequently, execution
came to be filed on April
21, 1994 to recover a
sum of Rs.3,33,860/-. Though three items of the property belonging to the
petitioner were listed for execution and attched under Order 21 Rule 54, CPC
only one of the items, namely, 8 acres and odd of agricultural land was brought
to sale. In fact the property sold on August 26, 1995 was purchased by 5th resort for
Rs.6,40,000/-. The petitioner filed an application under Order 21 Rule 90, CPC
read with Section 47 challenging the sale. It is contended primarily that
proclamation of the sale under Order 31 Rule 66, CPC did not contain valuation
of the property and, therefore, the sale conducted in furtherance thereof was
not valid in law. It is also contended that the sale was vitiated by material
irregularity and fraud in conducting the sale. The executing Court rejected the
contentions and dismissed the petition.
appeal came to be filed in the High Court. Pursuant to an observation made by
the learned Judge, opportunity was given to the petitioner to pay 15% interest
on the auction purchase price of Rs.6,40,000/- and odd. The auction purchaser
had agreed for releasing the property from sale.
opportunity was given to the petitioner to deposit the amount the petitioner failed
to avail of the opportunity nor did she deposit it. The High Court by the
impugned order dismissed the appeal. Thus, this special leave petition.
contended that the proclamation does not contain the valuation and, therefore,
the sale is bad in law. The High Court has pointed out that though notice was
served on the petitioner under Order 21 Rule 66, CPC the petitioner has failed
to give the valuation of their own. The Court relied upon valuation given by
the decree-holder and settled the terms of the sale proclamation. The property
was sold for much more than the decretal amount of Rs.3,00,000/- and odd;
therefore, there is no illegality in the proclamation of the sale made by the
High Court also pointed out that the petitioners could not prove that there was
any material irregularity or fraud in conducting the sale. the High Court noted
perusal of the order sheet maintained by the executing court shows that the
appellant filed an application under Order 21 Rule 90 CPC and in the said
application the Court adjourned the case for filing objections to the said I.A.
On 30.9.1995 the respondent filed objections to the I.A. Thereafter the matter
has adjourned for evidence. On 20.10.1995 at the request of the advocate for
the appellant the case was adjourned for evidence and hearing. On 31.10.1995
the advocate appearing for the appellant submitted that his objections may be
taken as his arguments Accordingly, the Court passed the final order on the
application filed under Order 21 Rule 90 CPC. The above said facts clearly
disclose that though opportunity was given to the appellant to give evidence to
prove their fraud or irregularity he has not availed of that opportunity and
proved the fraud or irregularity as alleged in his application.
there is no reason to set aside the sale on the ground of any irregularity or
fraud in publishing or conducting the sale.
8.4.1996 the Court orally suggested to the counsel for the appellant to pay the
amount due under the decree along with the solatium at 15% paid by the auction
purchaser for which the auction purchaser has no objection to set aside the sale
provided he has been paid the amount as suggested by the Court. For this
suggestion the counsel for the appellant agreed to pay the amount as suggested
provided some time is given to him.
the case was adjourned to 18.4.1996 with an understanding that the appellant
shall pay the amount with solatium. On 16.4.1996 the advocate submitted that on
amount of the communication gap between him and his client he was not in a
position to say whether his client is willing to deposit the amount as directed
by the Court. This submission in my view is only to avoid payment and drag on
the proceedings. Though the indulgence was shown by this court to the appellant
he has not made use of the said situation to save the property. Hence, I find
no reasons to interfere with the order passed by the trial court.
the appeal is dismissed with costs of Rs.1000/-." A reading thereof would
clearly indicate that opportunity was given to the petitioner to establish
whether the sale was vitiated by any material irregularity or fraud in
publishing or conducting the proclamation of sale by the decree-holder. Except
repeating the averment and raising a contention in the written arguments, no
evidence was adduced to prove them. Under those circumstances, the material
conditions required under Order 21 Rule 90, SPC are not proved. It is contended
for the petitioners that they are prepared to pay the amount if an opportunity
is given to them. The High Court in fact gave the opportunity to pay the amount
with interest at the rate of 15% on the sale amount but the petitioners have
not availed of the opportunity. The High court has observed that the
petitioners intended to prolong the finalization of the sale. We think that the
observation made by the High Court is justified on the facts. We do not think
that it is a case warranting interference by further extension of time.
special Leave petition is accordingly dismissed.