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H.N. Vinayaka and ors. Vs. the Firm of H. Venkatasastry and Sons and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 4 of 1974
Judge
Reported in1975(2)KarLJ12
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 66 and 90; Karnataka Land Reforms Act, 1962 - Sections 80
AppellantH.N. Vinayaka and ors.
RespondentThe Firm of H. Venkatasastry and Sons and ors.
Appellant AdvocateM.S. Gopal, Adv.
Respondent AdvocateT.S. Ramachandra, Adv.
Excerpt:
.....it has been collecting from them an ascertained sum of money towards the same. - 4. the learned civil judge held that the judgment-debtors have failed to show that the price fetched at the court sale was so grossly inadequate as to amount to a substantial injury within the meaning of rule 90 of order 21, civil procedure code. in any event, the sale as such had been held well beyond the period during which such stay had been effective. 5. it is well settled that in order that a sale by court to be set aside under order 21, rule 90, it is necessary for a judgment-debtor to show that there was not only substantial injury caused as a result of the low price fetched but such a result was on account of the material irregularities or fraud in the publication and conduct of sale. i have also..........at such a sale. it is to be remembered that three of the judgment-debtors were present during the sale held on 18-6-1973 and none of them has entered the witness box. even assuming that there has been a material irregularity in the conduct of the sale, as alleged it would not be of any assistance to the appellants as they had failed to establish the further requirement of substantial injury as required by rule 90 of order 21, civil p, c.8. the next contention urged is that the sale proclamation had been held when the stay issued by this court was in full force. it seems to me that the relevant discussion bears on this aspect in the order impugned clearly bears out that there has been no irregularity in this behalf. it is seen therefrom that the stay issued was conditional and the.....
Judgment:

1. This appeal under Order 43, Rule 1, Civil Procedure Code isby judgment-debtors 2, 6, 9 and 11 in Ex. Case No. 516yi971 on the file of the Principal Civil Judge, Shimoga, and directed against an order made on I. A. No. 10, preferred under Rule 90, of Order 21, Civil Procedure Code, refusing to set aside a court sale of certain agricultural lands belonging to them.

2. The grounds on which the sale was questioned were: (1) there was collusion between decree-holder and the Amin as a result of which a wholly inadequate price was fetched by the sale and also that the auction purchaser was none other than a clerk in a 'Mandi' belonging to the relative of the decree-holder; (2) the sale was not held between the hours of 11 A. M. to 5 P. M.: (3) there was no proper publication of sale proclamation; (4t the sale was conducted at the village panchayat hall and not at the spot; (5) the execution could not proceed on account of a stay order issued by this court which was operative during the period between 21-2-1973 and 29-5-1973; and (6) the sale of agricultural land had been prohibited by a certain law in force at the tune.

3. In all 5 plots of garden land, aggregating to 2 acres and 11 guntas in area, were sold in the court sale on 18-6-1973 for a consideration of about Rupees 30,000/-, pursuant to an execution of a decree for sale.

4. The learned Civil Judge held that the judgment-debtors have failed to show that the price fetched at the court sale was so grossly inadequate as to amount to a substantial injury within the meaning of Rule 90 of Order 21, Civil Procedure Code. He further held that the stay order of this court was a conditional one and the condition not having been fulfilled by the judgment-debtors, it did not operate to stay all proceedings in execution. In any event, the sale as such had been held well beyond the period during which such stay had been effective. Lastly, he held that there had been no irregularity in the publication and conduct of the sale.

5. It is well settled that in order that a sale by court to be set aside under Order 21, Rule 90, it is necessary for a judgment-debtor to show that there was not only substantial injury caused as a result of the low price fetched but such a result was on account of the material irregularities or fraud in the publication and conduct of sale. It is useful in this connection to refer to an enunciation of the Supreme Court in Radhyshyam v. Shyam Behari Singh, : [1971]1SCR783 which reads thus:

'..... Mere proof of material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury is therefore not sufficient. What has to be established is that there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thin to be established between the inadequacy of price and the material irregularity.'(underlining by court) 5-A. On behalf of the appellant. Sri M. S. Gopal, the learned Counsel, did not at all seriously challenge that the price fetched at the court sale was so grossly inadequate as to amount to a 'substantial injury' within the meaning of Rule 90 of Order 21, Civil P. C. I have also been taken through the relevant discussion in the order impugned relating to the price of property sold and I am satisfied that the same is reasonable and cannot therefore be interfered with. Moreover, nothing has been shown to me from a reference to the relevant evidence adduced that the conclusion arrived at by the Judge was in any manner unreasonable or improper. Hence the conclusion of the learned Civil Judge that the price fetched at the sale had not been shown to be grossly inadequate must be upheld.

6. Once the above conclusion is reached, it would follow that a consideration of the material irregularities, even if any, as contended for the appellants, unless any rule or law of a mandatory character has been infringed, is rendered unnecessary in view of the enunciation of the Supreme Court reproduced earlier. However, I shall briefly consider the contentions urged.

7. The first contention urged is that the proclamation had been duly published had not been proved by evidence and P. W. 1, the Amin, who has been examined says nothing about it. It must, therefore, be held that the requirements of Rule 66 of Order 21 had not been complied with. 1 am unable to accede to this contention. The argument is that none of the persons who have attested to its due proclamation have been examined. It seems to me that from a perusal of the relevant document a presumption could be raised that the same had been duly published. The evidence to the contrary adduced on behalf of the judgment-debtors is clearly unworthy of acceptance. D. W. 5 (one of the judgment-debtors examined) says no doubt that there was not any such proclamation. But he is a person who cannot be believed as he has also made an attempt to speak to the sale having been held irregularly, although on bis own admission, he was not present at such a sale. It is to be remembered that three of the judgment-debtors were present during the sale held on 18-6-1973 and none of them has entered the witness box. Even assuming that there has been a material irregularity in the conduct of the sale, as alleged it would not be of any assistance to the appellants as they had failed to establish the further requirement of substantial injury as required by Rule 90 of Order 21, Civil P, C.

8. The next contention urged is that the sale proclamation had been held when the stay issued by this court was in full force. It seems to me that the relevant discussion bears on this aspect in the order impugned clearly bears out that there has been no irregularity in this behalf. It is seen therefrom that the stay issued was conditional and the condition not having been fulfilled, it would not be open to a judgment-debtor to contend that there has been any irregularity in this regard. The sale itself has been held long subsequent to the period when the said stay had ceased to have effect. Moreover, I fail to see how the judgment-debtors could be said to have been prejudiced by this circumstance. Hence I am not persuaded to agree with this submission.

9. The next contention is based on the provision of Section 80 of the Land Reforms Act which, in effect, provides that no sale of agricultural land could take place except to an agriculturist, and the purchaser not having been an agriculturist could not have purchased the lands in question, It seems to me that such a contention is not open to a judgment-debtor in an enquiry under Rule 90 of Order 21, Civil P. C. That this is so will be clear from a decision of this court in the case of Chayappa Santamappa v. Mohammed Hassan, (1964 (1) Mys LJ 166). Therefore, this contention also must fail.

10. Lastly, it is contended that there has been no notice to the judgment-debtors. Such a plea has not been raised at all in the application to question. Hence, it does not arise for consideration.

11. Hence all the contentions fail. The appeal, therefore, is dismissed, but without costs.

12. Appeal dismissed.


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