HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.1076 of 2006 DATED: 05.03.2010 Between: Mudunuri Venkata Satya Krishnam Raju .. Petitioner/Judgment Debtor And Vegesina Kumar Raju .. Respondent/Decree Holder Mungala Venkata Subba Rao Gupta .. Respondent/Auction Purchaser HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.1076 of 2006 JUDGMENT:- This appeal is filed by the judgment-debtor against the orders in E.A. No.398 of 2005 in E.P. No.14 of 2005 in O.S. No. 153 of 2004, dated 17.11.2006 on the file of the Senior Civil Judge, Narsapuram, whereby the petition filed by him under Order XXI Rule 90 CPC to set aside the sale conducted on 07.10.2005 in respect of item No.4 of the E.P. schedule properties was dismissed. 2. Brief facts of the case are that the 1st respondent (decree holder) filed O.S. No.153 of 2004 for recovery of a sum of Rs.2,43,230/- against the appellant (judgment debtor). An ex parte decree was passed against the appellant on 31.12.2004 and the same became final. Thereafter, the 1st respondent filed E.P. No.14 of 2005 for execution of ex parte decree by sale of the attached properties. After the sale proclamation, sale was conducted through auction on 07.10.2005, and the same was confirmed on 20.11.2006 and possession was also delivered to the 2nd respondent (auction purchaser). Thereupon, the appellant filed E.A. No.398 of 2005 on 01.11.2005 under Order XXI Rule 90 CPC to set aside the sale in respect of item No.4 of the schedule property and the said E.A. was dismissed by order dated 17.11.2006. Aggrieved by the same, the appellant filed the present C.M.A. on 05.12.2006. 3. Heard Sri J.Kanakaiah, learned counsel for the appellant, Sri Y.Koteswara Rao, learned counsel for the 1st respondent and Sri S.R.Sanku, learned counsel for the 2nd respondent. 4. The learned counsel for the appellant strenuously contended that soon after the auction was conducted on 07.10.2005, the appellant filed E.A. No.398 of 2005 on 01.11.2005 itself by specifically stating that there are trees in the schedule land, the value of which is about Rs.1,24,000/- was not taken into consideration and that although the market value of item No.4 of the schedule property is more than Rs.8,00,000/-, on account of the collusion between the respondents, it was undervalued. He further contended that since the sale proclamation was not made in a conspicuous manner, very few persons participated in the auction and therefore, the same has caused substantial injury to the appellant. He further contended that E.A. was dismissed on 17.11.2006. Immediately thereafter, the appellant filed an application for certified copies of the order and the same was furnished only on 25.11.2006. Even before the issuance of the certified copy of the order, the Court below hastily confirmed the sale on 20.11.2006 itself. The appellant, was therefore, deprived to work out his legal remedies in an unjustified manner. He further contended that even in the affidavit filed in support of the E.A., the appellant categorically expressed his readiness to deposit the decretal amount into the Court to safeguard the interest of the decree holder and also of the auction purchaser. He further contended that the Court below committed a serious error in holding that the appellant did not mention in his pleadings about the existence of trees without even looking into the affidavit filed in support of the E.A. The error is apparent and therefore, the impugned order is not sustainable. 5. The learned counsel for the 1st respondent-decree holder contended that there was no collusion between him and the 2nd respondent-auction purchaser and the impugned order is not liable to be interfered with. 6. The learned counsel for the 2nd respondent-auction purchaser vehemently contended that there was no fraud or material irregularity in the auction conducted and the allegation that the respondents colluded with each other is without any basis. The property was properly valued and the value of the land of the appellant’s son, sold under Ex.B1, sale deed, in comparison, would show that the property is not under-valued and the appellant has not suffered any substantial injury. He therefore, submitted that the impugned order is valid and the same is not liable to be interfered with. 7. I have thoroughly examined the rival contentions with reference to record. 8. The specific case of the appellant is that item-4 of the schedule property was undervalued on account of the collusion between the respondents and that there are coconut and palmyrah trees existing in the schedule land, the value of which was deliberately not taken into consideration. Although these facts were mentioned in the affidavit filed in support of the E.A., the Court below did not consider the same. In order to appreciate this contention, it is necessary to advert to the impugned order under appeal. The Court below in the impugned order stated as under: “Whereas the judgment-debtor having claimed in this petition that the said property is more than valued Rs.8,00,000/-, he could not substantiate the same in his pleadings. Though he has not mentioned in his pleadings that the existence of the trees in the lands, during arguments he submitted that there are 26 coconut trees; value of which is not less than Rs.2000/- per tree, and there are some palmyrah trees and other things in the said land. But when it is absent in the pleadings, such a contention cannot be taken into consideration.” Similarly, the Court below, in para-5, stated again as follows: “Even though, he deposed that the said property, but though he filed a counter in sale notice before settlement before as P.W.1 about the existing of trees and such other things, but he could not mention the same even in his petition. Therefore, it is to be doubted whether there are any such trees are there in that land or not…………” “As the existence of any trees in the pleadings, he is not entitled to urge that there are several trees in that land and the value of them also to be taken into consideration.” Again in para-6, the Court below after referring to the judgment in M.Veera Raghavaiah V. P.Singa Rao and others[1], held thus: “In the present case there are no such structures in the said land admittedly by the petitioner. But the petitioner without pleading, contended that there are some trees in the land value of which is to be taken into consideration. Hence, the said decision do not apply to the present set of facts.” Again in para-9, the Court below stated as follows: “If it is so, he should have taken such plea that there are trees in the said land, which will increase the value of the said land in the sale notice itself. But the petitioner could not took such plea not only in the counter filed at the time of sale notice for the settlement of terms even he could not pleaded in this petition also.” From the aforesaid extractions of the order, it clearly emerges that the Court below proceeded with assumption that the appellant did not plead the existence of trees in the land. The Court below, on this premise, did not consider whether there are any trees existing in the land so as to adjudicate the value of the land. A perusal of the affidavit filed in support of the petition in E.A.No.398 of 2005 would clearly show that the appellant, in fact, had taken such plea as to the existence of the trees. It is useful to extract the plea of the appellant as stated in the said affidavit. “1. I am petitioner herein and J.Dr in the above EP proceedings, as such I know the facts of the case. 3. I submit that item No.4 of the E.P. schedule property is more valuable and more potential, its market value is more than Rs.8,00,000/- per acre and there are 26 yielding coconut trees and 68 palmyrah trees, the value of the one coconut is Rs.2,000/- the value of one palmyrah tree is R.1,000/-, so 26 coconut trees value is Rs.56,000/-, the 68 palmyrah trees value is Rs.68,000/-, the total value of the coconut trees and palmyrah trees i.e. Rs.56,000/- (+) Rs.68,000/- is Rs.1,24,000/-. The market rate of item No.4 of the E.P. schedule property is Rs.7,26,000/- the total value of the item No.4 of the E.P. Schedule property and trees thereon is (Rs.1,24,000/- (+) Rs.7,26,000/- (=) Rs.8,50,000/- Rupees eight lakh fifty thousand only). The 1st respondent/D.Hr. wrongly mentioned the property value and did not mention the trees, the 1st petitioner/J.Dr. respondent/D.Hr. played fraud before this Hon'ble Court.” From the above extraction, it is manifest that the appellant specifically pleaded as to the number of trees and the value thereof. In fact, he narrated that the value of each coconut tree is Rs.2,000/- and the value of each palmyrah tree is Rs.1,000/- and he further explained that the potential market value of the land is Rs.7,26,000/-. He thus explained that the total value of item-4 is Rs.8,50,000/-. He also specifically pleaded that the 1st respondent wrongly mentioned the property value and did not mention the trees and that the respondents colluded and lowered the value of the bid amount, thus, played fraud on the Court. 9. As it is so narratively apparent in the pleadings, as reflected from the affidavit of the appellant, it is beyond comprehension as to how the Court below observed that the pleadings as to the existence of trees are absent. That apart, the appellant, besides examining himself as P.W.1, got examined P.Ws.2 to 4. In his deposition, P.W.1 categorically referred to the aforesaid facts. P.W.4 is the Court Amin who earlier worked in the Court at Palakollu, West Godavari District. In his deposition, he stated that he prepared the proceedings of attachment over the schedule property. The certified copy of the same was marked as Ex.A-2 and in the said exhibit, he noted that there are some fruit bearing trees. He was not cross-examined by the respondents. In addition to Ex.A-2, the appellant got marked Ex.A-1, rough plan, prepared by the appellant. 10. The Court below although referred to Ex.B-1, did not refer Exs.A-1 and A-2. Similarly, there is absolutely no reference to the depositions of P.Ws.2 to 4. P.W.4 had, in fact, spoken about the trees and he himself prepared Ex.A-2. Therefore, it is clear that the Court below has omitted to consider the evidence adduced by the appellant. The Court below has merely placed a reliance on Ex.B-1 and based on the same, rejected the petition filed by the appellant. Omission to consider the evidence adduced by the appellant is writ large. The fact as to whether there was a fraud or any other material irregularity in conducting the sale can be ascertained only from the whole of the evidence as available on record. However, the Court below has not considered the evidence as noted above. 11. That apart this Court, while admitting the appeal on 15-12-2006, granted interim stay on the condition of the appellant depositing the entire decretal amount within a period of two weeks and on such deposit, the decree-holder was given liberty to withdraw the same without furnishing any security, and in default, the stay would stand vacated. In terms of the interim orders, the appellant deposited the amount on 27.12.2006. 12. In this view of the matter, I am of the considered opinion that the impugned order is unsustainable and the same is liable to be set aside, and the matter has to go back for reconsideration. I am, therefore, not inclined to consider the other submissions made by the learned counsel for both the parties. 13. In the result, the order in E.A. No.398 of 2005 in E.P. No.14 of 2005 in O.S. No. 153 of 2004, dated 17.11.2006 on the file of the Senior Civil Judge, Narsapuram, is set aside. The matter is remanded for consideration afresh. The Civil Miscellaneous Appeal is accordingly allowed. There shall be no order as to costs. _____________________ 5th March 2010 KVR/BCJ [1] 1997 (2) A.L.T. 699 9 (D.B.)