2001 Supreme(Kar) 34
Karnataka High Court
Judges : R.Gururajan
RANA ENTERPRISES, BANGALORE - Appellant
Versus
STATE BANK OF MYSORE, PEENYA INDUSTRIAL BRANCH, BANGALORE - Respondent
Miscellaneous First Appeal 3385 Of 2000
Decided On : 01/11/2001
Headnote:Code of Civil Procedure, 1908-Order 21, Rule 90-Application for setting aside essential sale on the ground of material irregularities in publishing and conducting sale-in this regard no evidence led which entails dismissal of application.
( 1 ) THIS appeal is preferred by the judgment-debtors challenging the order dated 28-7-2000 rejecting their application filed under Order 21, Rule 90 read with Section 151 of the CPC in execution Case No. 1101 of 1997 by the XIX Additional City Civil Judge, Bangalore, on the following facts.
( 2 ) THE appellants are the judgment-debtors and the respondents are the decree-holder and the auction purchaser. They would be referred as per the rankings before the Trial Court.
( 3 ) THE decree holder-State Bank of Mysore filed a suit in O. S. No. 2533 of 1986 against the judgment debtor-defendants seeking for a judgment and decree before the Trial Court. The matter was contested. The Trial Court decreed the suit against the defendants/judgment-debtors. An execution case was filed in Execution Case No. 1101 of 1997. There is another decree suffered by the judgment-debtors and another execution case in Execution Case No. 3 of 2000 is by the bank against the judgment-debtors. The said execution was opposed by the judgment-debtor. On the execution side sale was ordered. The judgment-debtor filed an application in. A. No. I under Order 21, Rule 69 read with Section 151 of the CPC seeking for the postponement of the sale to be held on 1-4-1998 and 8-4-1998.. A. No. II is also filed seeking for recalling the order dated 10-12-1998 ordering the sale of the property. These two applications were opposed by the decree-holder. The said two applications were dismissed on account of those applications becoming infructuous in view of the factum of want of bidders. An order to this effect was passed on 1-7-1999. Thereafter it was adjourned from time to time. Executing Judge ordered sale proclamation. The same was granted vide order dated 1-7-1999. On 23-9-1999 Court ordered issue of sale warrant. On 16-12-1999 Counsel for the decree-holder requested to receive a DD for a sum of Rs. 1,00,000/- from judgment-debtor. Counsel for the judgment-debtor sought for time to pay the decretal amount. Subsequently an application was filed by the judgment-debtors under Order 21, Rule 90 seeking an order to set aside the sale of immovable property held on 9-12-1999 and 16-12-1999. From the records it is seen that a sale proclamation was duly published by beat of tom-tom. A spot sale was held. One Sri B. D. Satyanarayana had bid the property for a sum of Rs. 13,57,000/ -. The sale was conducted in the presence of the Counsels in the Court hall. Out of the bidders present in the Court, one Mr. Vishwanath Kamath bid the property for a sum of Rs. 14,55,000/ -. He stated that he is prepared to deposit 25% of the amount in the Court. He deposited Rs. 3,65,000/- being 25% of the bid amount. He agreed to deposit the balance amount within 15 days. The matter was adjourned to be heard on judgment-debtor application. On the same day Counsel for the judgment-debtor filed memo seeking permission to deposit Rs. 1,00,000/- in the Court. On 1-1-2000 the matter was adjourned to 17-1-2000. On the said date again matter was adjourned to 1-2-2000. It was adjourned from time to time. Finally the matter was heard. The application filed by the judgment-debtor was dismissed by an order dated 28-7-2000.
( 4 ) THE auction purchaser has deposited the balance sum as well. In these state of affairs this appeal is filed by the judgment-debtors questioning the order of the Trial Court on various grounds.
( 5 ) BEFORE the Trial Court the judgment-debtors questioned the sale on the following grounds: 1. The proclamation does not satisfy the requirement of Order 21, Rule 66 of the CPC; the value set forth in the proclamation does not reflect the true value of the schedule property; the decree- holder has failed to mention the fact of the mortgage to another Bank. Violation of Order 21, rule 66, sub-rule (2) of clause (c ). 2. The second contention is that the proclamation is not properly published in terms of Order 21 of Rule 67 of the CPC. 3. The procedure of sale conducted