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2004 DIGILAW 115 (AP)

Sal Enterprises, Suryapet v. Bhimreddi Laxmaiah

2004-02-03

L.NARASIMHA REDDY

body2004
( 1 ) THE petitioner filed O. S. No. 57 of 1996 in the Court of the Senior Civil Judge, Suryapet, against the 2nd respondent herein, for recovery of a sum of Rs. 4,49,500/ -. The suit was decreed on 16-01-2000. It filed ep. No. 1 of 1999 (?) (19/2001) for a sum of rs. 5,69,816/- being the decretal amount. While the suit was pending, it obtained attachment before judgment on 7-10-1996 against an item of property under order XXXVIII Rule 1 CPC by filing I. A, no. 413/1996. ( 2 ) THE 1st respondent has also filed o. S. No. 65/1996 in the same Court against the 2nd respondent for foreclosure of the mortgage in his favour for a sum of rs. 1,00,000/ -. This suit was decreed exparte. On the basis of this ex parte decree, he filed e. P. No. 1 of 1999. Since the 1st respondent had precedence over other claimants in view of specific provisions of Section 58 of the transfer of Property Act, he sought for sale of the mortgaged property by filing E. P. No. 1/1999 because the 2nd respondent did not satisfy the decree. Certain publications were made in the newspapers. The 2nd respondent raised some objections. On account of the same, sale could not be proceeded with. Ultimately, the auction of the suit schedule property was held on 13-12-2001. ( 3 ) THE petitioner filed E. A. No. 42/2002 in e. P. No. 1/1999 raising an objection that adequate publicity was not given before the sale was effected. It was contended that the value of the property is around rs. 6,00,000/-wereas the auction has fetched only a sum of Rs. 3,12,000/ -. The E. A. was dismissed by the Executing Court through its order dated 17-12-2003. Hence, this revision. ( 4 ) SRI M. Rajmalla Reddy, learned Counsel for the petitioner, submits that there was collusion between respondents 1 and 2 to defeat the claim of the petitioner under the decree in O. S. No. 57/1996. According to him, adequate publicity was not given before the sale was effected, and thereby the rights of the petitioner were defeated. Placing reliance upon Rule 54 (2) read with Rule 67 of order XXICP. According to him, adequate publicity was not given before the sale was effected, and thereby the rights of the petitioner were defeated. Placing reliance upon Rule 54 (2) read with Rule 67 of order XXICP. C. , he submits that publication of the notice in the places mentioned in Sub-Rule 2 of Rule 54 is mandatory and since such a publication was not made, the entire proceedings are vitiated. He also relied upon the judgment of the Supreme Court in Desh bandhu Gupta v. N. L. Anand and Rajender singh, and of this Court in D. Kondaiah v. Guntha Rama Subbaiah and Narayanappa v. Akkulappa. ( 5 ) SHRI B. Vijaysen Reddy, learned Counsel for respondent No. 1, submits that publications were made as many as 4 times in the newspapers and on account of obstructions caused by the petitioner, on one hand, and the 2nd respondent, on the other, from time to time, the sale could not be proceeded with, though the decree was passed way back in the year 1999. According to him the petitioner did no raise any specific objection as to non-compliance with rule 54 (2) Order XXI C. P. C. and that is not at all open to raise such objection at this stage. Tt is also his contention that the 2nd respondent has preferred c. R. P. No. 6036/2001 before this court challenging the very sale and that the same was dismissed. He contends that the very fact that several bidders have participated in the sale discloses that the allegation of the petitioner that adequate publicity was not given is not true. ( 6 ) SRI M. T. Gowri, learned counsel for the 2nd respondent submits that the petitioner and respondent No. 1 have colluded to knock out the property at a throw away price. ( 7 ) THE petitioner obtained a decree for a sum of Rs. 5,69,816/- against the 2nd respondent. It obtained an order of attachment before judgment against an item of property belonging to the 2nd respondent. It had filed E. P. No. 19/2001. Incidentally, same property was under mortgage with the 1st respondent for a sum of Rs. 1,00,000/ -. Since the 2nd respondent did not discharge his obligation under the mortgage, the 1st respondent filed O. S. No. 65/1996 for foreclosure. This suit was decreed in the year 1999. It had filed E. P. No. 19/2001. Incidentally, same property was under mortgage with the 1st respondent for a sum of Rs. 1,00,000/ -. Since the 2nd respondent did not discharge his obligation under the mortgage, the 1st respondent filed O. S. No. 65/1996 for foreclosure. This suit was decreed in the year 1999. Under Section 58 of the Transfer of property Act, the claim of a mortgage has precedence over other claimants vis-a-vis the mortgaged property. It was for this reason that the Executing Court had proceeded to effect sale of the mortgaged property. Ultimately the auction was held on 13-12-2001. The 1st respondent offered the highest sum amongst the various bidders being Rs. 3,12,000/- and he was declared as the successful bidder. ( 8 ) THE petitioner filed E. A. No. 42/2002 contending that adequate publicity was not given before the sale was undertaken. The allegation is general in nature. The affidavit does not disclose as to whether the objection relates to non-publication in the newspaper or non-publication in the various places mentioned in Sub-Rule 2 of Rule 54 order XXI C. P. C. It is true that the Hon ble supreme Court in Desh Bandhu Gupta Case (1 supra) held that compliance with Rule 54 read with Rule 67 of Order XXI C. P. C. is mandatory and non-compliance with the same is fatal to the proceedings. To the same effect are the decisions of this court rendered in D. Kondaiah case (2 supra) and Narayanappa case (3 supra ). However, to fit into the parameters of Rule 54 (2) of Order XXI of c. P. C. , an objection has to be specific and not general in nature. In the absence of specific allegations, it would not be possible either for the parties or for the executing Court to deal with the same. ( 9 ) IT has come on record that before effecting the sale, the Executing Court had to direct publication of the same as many as four times. While the 1st two publications were in a daily called eenadu of the editions dated 4-11-1999 and 8-6-2000, the next two publications were in a newspaper called neti Mandesham dated 12-11-2001 and 13-12-2001. It is true that the newspaper by name Neti Mandesham does have adequate circulation. While the 1st two publications were in a daily called eenadu of the editions dated 4-11-1999 and 8-6-2000, the next two publications were in a newspaper called neti Mandesham dated 12-11-2001 and 13-12-2001. It is true that the newspaper by name Neti Mandesham does have adequate circulation. This court would have considered the effect of publication in such a news paper, if it were to be a case, where the petitioner had participated in the auction notified to be held in pursuance of publications dated 4-11-1999 and 8-6-2000 made in Eenadu. The record of the Executing Court discloses that on 16-6-2000, when further steps were about to be taken in pursuance of publication dated 8-6-2000; the 2nd respondent has come forward with an objection petition. Though as many as 5 bidders came forward, the sale could not take place on account of the objection raised by the 2nd respondent. The petitioner was not one of the 5 bidders. When he did not respond to the publication in a prominent daily, he cannot turn round and plead that he was not aware of the sale proceedings, on account of publication of the notice in a daily, without circulation. Therefore, this plea cannot be accepted. ( 10 ) ANOTHER important aspect raised by the learned counsel for the petitioner is that in addition to the publication in the newspapers, publication ought to have been made in the various places mentioned in sub-Rule 2 of Rule 54. However, this objection was not raised in the E. A. A perusal of the affidavit filed in support of the application discloses that except stating that wide publicity was not given to the sale, it was not mentioned that the publication was not made in the various offices and places mentioned in Sub-Rule 2 of Rule 54. Had the petitioner made a specific allegation in his affidavit or during the course of arguments before the executing Court, the 1st respondent would have been in a position to deal with it. Such important aspects cannot be adjudicated on general assertions and pleadings. At any rate, the sale has since been confirmed. The executing Court had dealt with all the aspects of the matter objectively and rejected the claim of the petitioner. ( 11 ) UNDER these circumstances, this court does not find any basis to interfere with the order under revision. Such important aspects cannot be adjudicated on general assertions and pleadings. At any rate, the sale has since been confirmed. The executing Court had dealt with all the aspects of the matter objectively and rejected the claim of the petitioner. ( 11 ) UNDER these circumstances, this court does not find any basis to interfere with the order under revision. The C. R. P. is accordingly dismissed.