Decided on April 26,1973

Duri Venkata Suryanarayan Murty And Anr. Appellant
G. Venkata Ranga Rao And Anr.,Nirode Kali Roy Choudhury And Anr. V. Rai Harendra Nath Choudhury And Anr.;Air 1938 Cal 113 Respondents


S.K. Ray, J. - (1.) THIS appeal is by the judgment -debtors, and arises out of the execution proceedings in E.P. No. 9/60 on the file of the Munsif, Berhampur. The third party -auction purchaser 's application for setting aside the sale, held in execution of a money decree, having been allowed, an appeal from that order to the Subordinate Judge, Berhampur having failed, the present appeal has been filed.
(2.) RESPONDENT No. 2 obtained a decree for money against the Appellants and put the same in execution in E.P. No. 9/60 in the Court of the Munsif, Berhampur. The disputed properties were sold in Court auction on 10 -5 -1966. Respondent No. 1 purchased the same for a sum of Rs. 7500/ - and deposited the amount in Court. This sale was confirmed on 21 -6 -1966. Subsequently, he filed an application on 3 -8 -1966 for setting aside the sale on the grounds that irregularity and fraud were committed in publishing or conducting the sale and that the judgment -debtors had no saleable interest. This application of the auction -purchaser (Respondent No. 1) was first of all rejected by the Munsif on 30 -9 -1961 on the ground of limitation and that there was no fraud or irregularity in publishing or conducting the sale. The auction -purchaser appealed to the Subordinate Judge who upheld the order of rejection only on the ground that the application was barred by limitation. He reversed the finding of the executing Court that there was irregularity or fraud in conducting the sale. The auction -purchaser came to this Court in R.A. No. 74/68. It was held by this Court that the application of the auction -purchaser for setting aside the sale should be treated as one under Section 47, Code of Civil Procedure and as such, the appeal to this Court was maintainable. It laid down the principle that where fraud has been practised and a Court in executing a decree, finds that fraud is proved to have been practised, the Court does not lack power to undo the consequences of fraud by relieving the party of the prejudicial effects resulting from the fraudulent act. It then remanded the whole matter to the executing Court for fresh disposal of the application of the auction -purchaser in accordance with law after taking relevant evidence.
(3.) AFTER remand, both the Courts below have concurred in setting aside the sale. The concurrent findings of the Courts below are: (a) The disputed lands were part of the enfranchised Dharmyadaya Inam lands and as such, constituted an Estates Abolition Act. (b) The intermediary interest in the suit lands which was vested with the judgment -debtors was abolished by virtue of notification No. 64950 -E.A.I. (SP) 109/65 -R dated 30 -9 -1964 of the Revenue and Excise Department of the Government of Orissa. Consequently, the lands vested with the State Government free from all encumbrances. (c) Lands were in possession of the tenants at the time of vesting and thus were not in Khas possession of the judgment debtors. That apart they did not even file any application for settlement of the land with him under the provisions of Section 7 of the Orissa Estates Abolition Act within the stipulated time. In consequence, the judgment debtors lost all interest in the disputed lands inclusive of right to possess and thus they had no saleable interest in the same on the date of sale. (d) The perchas, issued in respect of the disputed lands in the name of the : judgment -debtors were prepared on 30 -11 -1970; such draft record -of -rights cannot create any title of the judgment -debtors in the disputed lands when they had none prior to its preparation. (e) There was much irregularity in publishing and conducting the sale which amounted, in essence, to a fraud.;

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