Vs. K.S. Nagesh Rao & Ors  INSC 187 (19 February 1997)
RAMASWAMY, S. SAGHIR AHMAD
O R D
E R Delay condoned.
special leave petition arises from the judgment and order dated July 16, 1996 passed by the learned Single Judge
of the Karnataka High Court in C.R.P. no. 5643.
first respondent suffered a decree in sum of Rs.. 2,400/- for recovery of
which, obviously included interest and costs in a sum of Rs.4,000/-/-, his
property was brought to sale on October 25, 1978 and the petitioner purchased
the same for a sum of Rs.. 67,000/-. An application was filed by the respondent
under Order XXI, Rule 90 of the Code of Civil Procedure (CPC) impugning the
legality of the sale conducted. The executing Court dismissed the application
by order dated August
16, 1990. On appeal
the appellate court set aside the order of the executing Court and allowed the
petition declaring that the sale was illegal. On revision, the High Court by
the order has confirmed the same. The finding recorded by the appellate Court
and the High Court is that non-compliance of the procedure required under Order
XXI, Rule 64, CPC had vitiated the sale.
contended for the petitioner that the executing Court having found that the
adequacy of consideration is not a ground for setting aside the sale but the
appellate Court and the High Court have not gone into that respect of the
matter. The appellant having purchased the property valued in the proclamation
at Rs. 85,000/-, The sale could not be set aside. We find no force in the
contention. IT is seen that the High Court has noted that the procedural
compliance of Order XXI, Rule 64, CPC was not adhered to which is a mandatory
requirement as held by this Court in Desh Bandhu Gupta v/s N.L. Anand & Rajinder
Singh [(1991) 1 SCC 131].
the sale consideration of the property was in excess of the execution. Under
these circumstances, the High Court is justified in confirming the order of the
appellate Court setting aside the sale.
Special Leave Petition is accordingly dismissed.