Gudipati Brahmanandam vs Gudipati Sarveswara Rao and Others

Wadsworth, J.—The present petitioner was the purchaser in Court auction of a mortgage-debt due to one Krishnayya who was the

judgment-debtor in a money suit. The decree-holder, having attached this mortgage-debt, brought it to sale and it was purchased by the present

petitioner on 14th October, 1935. More than a year later, the son of the mortgagee, who by this time is dead, filed an application which recites

Order 21, Rule 90, Sections 47 and 151 of the CPC and Section 18 of the Limitation Act, praying the Court to set aside the sale and direct the

mortgagor, who was made a party, to deposit the amount due on the mortgage, out of which the decree debt was to be satisfied and the balance

paid to the applicant. The lower Court has dealt with this application in a somewhat summary manner. The learned District Munsif recites Rule 183

of the Civil Rules of Practice as laying it down that a debt attached in execution of a decree should be realised by appointment of receiver and not

by sale, unless the attached debt is very insignificant. He then states, wrongly, that the decree debt was not over Rs. 100 whereas in fact it was

three times this figure and that the sale fetched less than Rs. 100, whereas the price was Rs. 251 and, without going into the question of limitation at

all, the learned District Munsif sets aside the sale and directs the decree-holder to take steps under Rule 183 of the Civil Rules of Practice.

It seems to me that this order cannot be upheld. Granted that Rule 183 directs the Court to realise an attached debt by the appointment of a

receiver and not by sale, unless this is undesirable from the smallness of the amount of the debt or otherwise, there is nothing in Rule 183 which

would justify the conclusion that a sale of the debt in execution is void, merely because the Court would have been better advised to have realised

it by the appointment of a receiver having regard to the terms of Rule 183. If once it is conceded that the sale in question - however ill-advised it

may be - cannot be regarded as void, it must beset aside in some manner known to law. There must be an application and presumably the law of

limitation governing that application will be Article 166. If for any reason,, the applicant, can bring himself within time in respect of an application

which is prima facie time, barred, by calling in, aid the provisions of Section 18 of the Limitation Act, the grounds upon which limitation is saved

must be proved and definitely found before the Court can go into the question of the validity of the sale: Here, there is a sale which may or may not

have been well-advised and which may possibly be attacked on other grounds. But the sale is certainly not ab initio void and there must be an

application to get it declared invalid. The application filed by the son of the judgment-debtor is apparently time-barred. Before the Court can

adjudicate on the validity of the sale, it must necessarily give a finding regarding the limitation of the application. I say nothing about the merits of the

application, having regard to the other contentions raised by the parties. But I do hold that the order of the lower Court setting aside the sale

without giving a finding on the question of limitation cannot be sustained.

The Civil Revision Petition is therefore allowed with costs; the order of the lower Court is set aside. The lower Court is directed to deal with the

contentions of the parties and dispose of the application afresh in the light of this Judgment.