GOPALA MENON Vs. AMMUKUTTY AMMA
HIGH COURT OF KERALA
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(1.) A court sale of immovable properties in execution of a money decree against the deceased first respondent (the first defendant) was sought to be set aside under O. XXI, R.90 of the Code of Civil Procedure on the ground of fraud and material irregularity in proclaiming and conducting the sale. The appellants (husband and wife) are the decree holder and the auction purchaser respectively; and they opposed the application. The executing court upheld the objection and dismissed the application holding that there was no fraud nor material irregularity in publishing and conducting the sale. On appeal the lower appellate court confirmed the finding that there was no fraud; but, it disagreed on the other ground and held that there was material irregularity. Consequently, the lower appellate court reversed the decision of the primary court and set aside the sale.
(2.) The appellants filed an execution petition stating that the judgment debtors were not agriculturists entitled to benefits of Act XXXI of 1958. The execution court returned the petition for clarifying how the judgment debtors were not agriculturists; and the kariastha (the agent) of the decree holder filed an affidavit stating that the estate of the judgment debtors was paying more than Rs. 150 as basic tax, so that the estate was not an agriculturist. Notice of the execution petition was given to the respondents; but, they did not appear. Execution proceeded; and the properties were sold and purchased by the second appellant. Before confirmation of sale the application, which has given rise to the second appeal, was filed for setting aside the sale alleging that there was fraud and material irregularity in proclaiming and conducting the sale. The fraud alleged was that the statement in the affidavit of the kariastha of the decree holder that the estate of the respondents was paying more than Rs. 150 as basic tax was, to the knowledge of the kariastha himself, incorrect and false. The material irregularity alleged was that since the estate of the respondents was an agriculturist, the first appellant was not entitled to execute the decree for the whole decree amount, but was entitled to execute the same only for the defaulted instalments under Act XXXI of 1958; in other words, the execution of the entire decree was a material irregularity.
(3.) As already stated, the Munsiff has held that the statement in the affidavit regarding the basic tax payable by the estate of the respondents was not fraudulent. The District Judge also has said at the close of Para.5 of his judgment that "it is not possible to say that the decree holder practised fraud on the court, for the contention that an honest mistake was made cannot be ruled out". Therefore, the only question for consideration in the second appeal is whether the District Judge is right in his view that there was material irregularity coming within O. XI, R.90 of the Code of Civil Procedure.;
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