Full Judgment Text
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PETITIONER:
S.S. DAYANANDA
Vs.
RESPONDENT:
K.S. NAGESH RAO & ORS.
DATE OF JUDGMENT: 19/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned.
This 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.
The 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.
It is 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].
Equally 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.
The Special Leave Petition is accordingly dismissed.