Rajadhyaksha J. - (1.)This is an appeal by the original plaintiff against an order dismissing the suit passed by the Civil Judge, Senior Division, Satara, in Special civil Suit No. 42 of 1945. The few facts that are necessary to state for the purpose of this appeal are these:
(2.)Defendant 1 had obtained a mortgage decree against the plaintiff in Suit No. 290 of 1940 in the Court of the Civil Judge at Islampur, and an order was made for the payment of Rs. 2,600 and odd and costs payable by the plaintiff in instalments. There was a provision in the decree that in default of payment of any two instalments the whole amount was to be recoverable at once. There were defaults for the years 1941 and 1942 and thereupon defendant 1 filed a darkhast, No. 915 of 1942, in the Court of the Civil Judge at Islampur for recovering the whole amount by sale of the mortgaged property. On 7th October 1942, the papers were transferred to the Collector for execution under Page 2 of 10 Virupaxappa Appa Mahajan vs. Shankar Mallappa Kavare and Anr. (19.09.1949 - BO... Section 68, Civil P. C. 25th January 1944 was fixed as the date for holding the auction sale. On 31st January 1944, i. e. four days before the auction sale was to take place, the plaintiff applied to the executing Court for relief against the default clause and deposited Rs. 200 in cash. He deposited a further sum of Rs. 300 on 24th January 1944, thus paying the whole amount for which he was in arrears. Thereupon on the same day, i. e. on 24th January 1944, the Court addressed a yadi to the Collector for staying the sale and for recalling the proceedings. It appears that this order did not reach the Mamlatdar in time, and the Mamlatdar held the auction sale, as originally announced, on 25th January 1944. The property was sold for Rs. 3,210 and was purchased by defendant 2. Defendant 2 deposited the required 23 per cent, of the auction price on the date of the auction sale, and the balance of the remaining 75 per cent, of the amount was to be deposited within 15 days thereafter. It appears that on 4th February 1944, when the auction purchaser (defendant 2) proceeded to deposit the remaining amount of the auction bid, it was brought to the notice of the Mamlatdar that an order had been passed by the Court on 24th January 1944, staying the auction sale and recalling the papers. On 18th February 1944, the papers were in fact sent back to the Court. Later on, the Court decided that the plaintiff should not be given relief against the default clause and sent back the papers to the Collector. On 25th October 1944, the plaintiff applied for setting aside the sale under Order 21, Rule 90. This application was rejected on 9th July 1945, and thereupon the present suit was filed on 31st October 1946, (1) for a declaration that the auction sale held on 25th January 1944, was void and did not extinguish the plaintiff's right in the property, and (2) for a perpetual injunction restraining the defendant from obstructing him in the possession and enjoyment of the property, or if he had bean in fact dispossessed, for getting back possession of the property.
(3.)Defendants l and 2 resisted the suit on more or less identical grounds. They contended that the sale held by the Collector was legal and valid, and that the price realised was adequate. They said that there were no material irregularities in the conduct of the sale proceedings, and that the present suit was barred under Order 21, RULE 93, Civil P. C. It was further contended that the suit was also barred on the principles of res judicata by reason of the orders in darkhast No. 915 of 1942.