Or.21, Rule 64,66 and Or.21, rule 90 of C.P.C -Even though a portion of the property is enough to satisfy the decree claim, No sale should be set aside due to dereliction, negligence & carelessness of Jdr, not only in contesting the case but also in complaining the orders of the Court - Exparte Decree - E.P.Claim Rs.3,55,732/- -Sale of agricultural land of Jdr -Sale Held- Auction purchaser paid sale price of Rs.13 lakhs and odd - Sale set aside by High court - Apex court granted time to pay auction purchaser a sum of Rs.15 lakhs and odd including compensation- Jdr failed to pay the same - Jdr failed to pay the E.P. claim also to the Dhr-2015 S.C.(2014) MSK Law Reports 1

The High Court  by  the  impugned
judgment dated 13th December, 2013, allowed the petition and set  aside  the
sale and directed the Executing Court to take appropriate  action  for  sale
of the property in question in accordance with the provisions  of  Rules  64
and 66 of Order XXI of the CPC.   It was also directed that respondent  no.1
i.e. the petitioner before the High Court should deposit  the  amount  which
had been paid to the decree holder i.e. the present  respondent  no.2.   The
amount deposited by the auction purchaser was directed  to  be  refunded  to
him by the executing Court and it was also directed that respondent  no.1  –
the judgment debtor should  be  put  into  possession  of  the  property  in

 Apex court held that  

we are of  the  view
that the judgment delivered by the High Court is not  just  and  proper  for
the reason that respondent no.1- debtor had never shown his fairness in  the
entire proceedings.  Though an ex-parte decree was passed  against  him,  he
never made sincere efforts to get the decree set aside.  Even  at  the  time
when the sale proclamation had been issued, he did not raise  any  objection
to the effect that even by sale of lesser area  of  his  land,  the  decree-
holder would get his dues.  Only after the auction sale had been  concluded,
he had initiated different  proceedings  before  different  Courts,  perhaps
only with an  intention  to  see  that  the  property  in  question  is  not
transferred to the auction purchaser.

In our opinion, respondent no.1 ought to have raised his objection  at
the stage when the property in question was to be sold by  an  auction.   He
did not do so.  Subsequently, after the property was sold  at  the  auction,
he approached the High Court, though a proper remedy for him was to file  an
application under Rule 90 of Order XXI of the CPC.    When  the  High  Court
had directed him to  file  appropriate  proceedings  before  an  appropriate
forum, he did so, but there also he was so  careless  that  the  proceedings
had been concluded against him on account of defaults committed by him.

The aforestated circumstances very well show  that  the  intention  of
the principal debtor is to avoid making payment to the  decree  holder.   If
the judgment delivered by the High Court is upheld, the  entire  proceedings
with regard to execution will commence de novo and one does not know  as  to
when the proceedings would be concluded and the decree holder would get  the
decretal amount.  By this time, the decretal amount, which was Rs.3,55,732/-
 somewhere in 2006, must have increased substantially and it  would  not  be
just and proper to keep the decree holder waiting still more.

 For the aforestated reasons, in the interest of justice, we feel  that
the impugned judgment delivered by the High Court  deserves  to  be  quashed
and set aside.  If the  auction  purchaser  is  not  in  possession  of  the
property in question or if there is obstruction  by  respondent  no.1,  such
obstruction shall be removed and the appellant shall be  put  in  possession
of the property in question.

 For the aforestated reasons, the appeal  is  allowed.  - 2015 S.C.(2014) MSK Law Reports 1

Popular posts from this blog

Sec.20 of C.P.C - Territorial Jurisdiction - suit for recovery of money based on Contract - As per the admitted plaint averments, the office of the defendants is located in Pargi, the offer made by the petitioner was accepted at Pargi, the contract was entered between the petitioner and the respondents at Pargi and the same was executed within the jurisdiction of the Court at Pargi.- Plaint returned with objection - as an after thought added the acceptance of contract was received at Malkajgiri - Trail court returned the plaint to file in proper court - Revision - Their Lordships held that if filing of suit is based on making of a contract, the cause of action arises at the place where the offer is accepted and if the suit is based on termination of a contract, the cause of action arises at the place where such termination order is received. Admittedly, the suit is based on making of a contract and not on termination of the contract.- dismissed the revision - 2015 Telangana & A.P. msklawreports

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Section 5 of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 read with Rule 9(1)(a)(i), (ii) and (iii) of the Rules of 1989. - Powers of Revenue Court - Petitioners are the legal heirs of Late Sri A. Penta Reddy and respondents 1 to 3 are the brothers of Penta Reddy - Petitioners claimed as Separate Property - Brothers/Respondents claimed as Joint family Property - MRO held summary enquiry and held that it is Joint family Property - No Appeal to RDO - after the lapse of 12 years filed Revision directly to Joint Collector - JC. dismissed the revision - this Writ - Their Lordships held that in the absence of any suit for Declaration of title after receiving Rule 9 notice with in 3 months, the MRO can decide the dispute summarily - since no appeal is filed nor any suit is filed in any court - the orders of MRO can not be challanged after the lapse of 12 years - dismissed the revision - -2015 Telangana & A.P. MSKLAWREPORTS