# PUTTI KONDALA RAO & ORS v. VELLAMANCHILI SITARATTAMMA & ANR

- **Citation:** [1976] 2 S.C.R. 998
- **Court:** Supreme Court of India
- **Decided:** 1975-12-12
- **Case number:** Civil Appeal No. 643 of 1975
- **Bench:** A. N. Ray, M. H. Beg, R. s. SARE:ARIA, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/putti-kondala-rao-ors-v-vellamanchili-sitarattamma-anr-6603
- **Pages:** 4

## Headnote

Code of Ci"i/ Proe'cdure-Order XX!, r. 90~Allegatio11s of substcmtial in·
jury-If ca11 be implied from facts and circumstanc.es alleged.
In an application under O.XXI, r. 90, Civil Procedure Code, the appellants
(judgment·debtors) alleged that the sale of their property pursuant to an order
of attachment was illegal for material irregularities. The trial Court held that
where there was an irregularity in the procedure for sale, the remedy would be
to apply to set aside the sale on proof of substantial injury and that there was
no fraud in the sale, as alleged by the appellants. On .appeal, the first appellate
Court held that the auction-purchaser was the husband. of the decree-holder and
that there MIS gross under-valuation of the property and so set aside the sale. On
further appeal, the High Court held that the application of the appellants was
defective and not maintainable and the Court had no power to set aside the
sale unless facts were alleged and proved by the applicant to the satisfaction
of the Court that he had sustained substantial injury by reason of such irregularity.
Dismissing the appeal,
HELD : (I) The judgment of the trial Court should be restored.
The trial
Court was correct in its conclusion and reasons that the property sold was
subject to mortgages and charges and was sold at the correct price, taking into
consideration the price of the prope,rties in the neighbourhood and other evi-
:E
dence on record. f!OOO E, 1001 G]
.F
· (2) The judgment of the trial Court was wrongly rever,'ed by the
first
appellate court Substantial justice had' been done to the parties. [IOOt'.C]
(3) The High Court was not unjustified in holding that the application for
setting aside the sale was bald and that there was no proper allegation of substantial injury to the appellants.
Sometimes, however, there may not be express
allegation• of substantial injury and the same may appear to be i~plicit from
all facts and circumstances alleged. In the present case, the allegations in the
petition coulct be read to imply substantial injury to the appellants.
The trial
Court as well as the first appellate court heard the parties and decided the case
on the footing that there w<:re allegations of substantial injury to the appellants. [1001 E-F]
·
L11xmide1·i v. Setha11i Mukand Kamrar & Ors., [1965] 1 S.C.R. 726, referred
to.
1G

## Text

.A
.B
•C
998
PUTTI KONDALA RAO & ORS.
v.
VELLAMANCHILI SITARATTAMMA & ANR.
December 12, 1975
[A. N. RAY, c. J., M. H. BEG, R. s. SARE:ARIA AND
P. N. SHINGHAL, JJ.]
Code of Ci"i/ Proe'cdure-Order XX!, r. 90~Allegatio11s of substcmtial in·
jury-If ca11 be implied from facts and circumstanc.es alleged.
In an application under O.XXI, r. 90, Civil Procedure Code, the appellants
(judgment·debtors) alleged that the sale of their property pursuant to an order
of attachment was illegal for material irregularities. The trial Court held that
where there was an irregularity in the procedure for sale, the remedy would be
to apply to set aside the sale on proof of substantial injury and that there was
no fraud in the sale, as alleged by the appellants. On .appeal, the first appellate
Court held that the auction-purchaser was the husband. of the decree-holder and
that there MIS gross under-valuation of the property and so set aside the sale. On
further appeal, the High Court held that the application of the appellants was
defective and not maintainable and the Court had no power to set aside the
sale unless facts were alleged and proved by the applicant to the satisfaction
of the Court that he had sustained substantial injury by reason of such irregularity.
Dismissing the appeal,
HELD : (I) The judgment of the trial Court should be restored.
The trial
Court was correct in its conclusion and reasons that the property sold was
subject to mortgages and charges and was sold at the correct price, taking into
consideration the price of the prope,rties in the neighbourhood and other evi-
:E
dence on record. f!OOO E, 1001 G]
.F
· (2) The judgment of the trial Court was wrongly rever,'ed by the
first
appellate court Substantial justice had' been done to the parties. [IOOt'.C]
(3) The High Court was not unjustified in holding that the application for
setting aside the sale was bald and that there was no proper allegation of substantial injury to the appellants.
Sometimes, however, there may not be express
allegation• of substantial injury and the same may appear to be i~plicit from
all facts and circumstances alleged. In the present case, the allegations in the
petition coulct be read to imply substantial injury to the appellants.
The trial
Court as well as the first appellate court heard the parties and decided the case
on the footing that there w<:re allegations of substantial injury to the appellants. [1001 E-F]
·
L11xmide1·i v. Setha11i Mukand Kamrar & Ors., [1965] 1 S.C.R. 726, referred
to.
1G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 643 of 1975.
Appeal by Special Leave from the Judgment and order dated the
24-3-1973 of the Andhra Pradesh High Court in C.R.P. No. 1015/72.
iii
M. K. Ramamurthi and B. Parthasarthi for the appellants.
B. V. Subrahmanyam and A. Subba Rao for the Respondents.
H
The Judgment of the Court was delivered by
RAY, C.J.
This appeal is by special leave from the judgm<:nt dated
24 March, 1973 of the High Court of Andhra Pradesh.
,
P. K. RAO V. SITARATTAMMA (Ray, C.J.)
999
Tfie High Court held that the application of the appellants, the judgment debtors is defective and not maintainable and the Court has no
power to set aside the sale unless facts are alleged by the applicant and
proved by him to the satisfaction of the court that the applicant has
sustained substantial injury by reason of such irregularity.
The respondents are the decree-holders.
Pursuant to the decree
there was an order for attachment and sale of the house property of
the appeI!ants.
The sale took place on 7 June, 1960.
The appellants filed an application on 7 July, 1960 under Order
XXI Rule 90: of the Code of Civil Procedure to set aside the sale.
On
18 November, 1966 the application was dismissed by the Munsif.
On
22 April, 1972 the Subordinate Judge allowed the appeal filed by the
judgment debtors and set aside the sale.
The High Court pursuant to
the revision petition presented by the auction purchaser set aside the
order of the Subordinate Court on the ground that the application of
the appellants under Order XXI was defective and not maintainable.
The application was in seven paragraphs.
The first two paragraphs
contained the description of the petitioners and the respondents. In
the third paragraph the judgment debtors alleged that the properties
were purchased by the husband of the decree holder.
In the fourth
paragraph the judgment debtors alleged that the sale notices were deliberately suppressed from the knowledge of the judgment debtors. It
is also alleged that the properties were undervalued and were sold in
favour of the husband who was the nominee of the decree-holder.
In
paragraph 5 it was alleged that the correct assessments had not been
!Shown.
In parag\·aph 6 of the petition it is alleged that the sale is
illegal for material irregularities and for suppression of all notices to
the petitioners as the respondents 1 and 2 colluded_ together and practised fraud upon the petitioners. In paragraph 7 the judgment debtors
prayed for setting aside the sale.
The Munsif by his order dated 18 November, 1966 noticed the
contentions which arose for consideration.
Those were as follows.
First, whether the judgment debtors had no knowledge of the attachm::!nt or subsequent sale proceedings.
Second,, whether the decree holder practised fraud upon the judgment debtors.
Third, whether
the
sale was illegal.
Fourth, whether the judgment debtors sustained any
substantial injury.
The sale was to be held on 6 June, 1960.
That was a public
holiday on account of Bakrid.
There was a gazette notification to that
effect.
Because the date of sale was a public h_ol.iday, the sale was
held on the next day 7 June, 1960.
The Munsif held that when the
sale is held on a date different from that notified without an order of
adjournment and a further proclamation of sale it would amount only
to an irre~arity and the remedy would be to apply to set aside the
sale on proof of substantial injury.
The Munsif held that there was
no circumstance to make the sale illegal or invalid.
The Munsif further held that the attachment was effective from 17
December, 1959.
One of the judgment debtors who was the eldest
A
B.
c
D
E
F
G
H
1000
SUPREME COURT REPORTS
[1976) 2 S.C.R.
.A
brother was present at the time of attachment.
The youngest brother
alleged that he was not pulling on well with the family nwnbers because he married a girl of another caste.
The Munsif held that to be
an after-thought because there was no evidence of any discord between the brothers.
The Munsif held that the judgment debtors were
living together in the house attached and that they had knowledge of
. B
the attachment .
\Vith regard to the sale notice the Munsif held that the judgment
debtors had knowledge of the attachment and sale and also held that
no fraud was practised.
With regard to the question of sustantial injury the Munsif held
that the allegation in the petition that the property was worth more
than Rs. 25,000 and that tbe decree holder got the same undervalued
was to be rejected.
The Munsif came to the conclusion that the adjacent property and the evidence and material circumstances would show
that the house could not be valued at more than Rs. 25,000.
The original sale deed Ex.B-11 of the adjoining house showed that it was sold
for Rs. 12,000.
That was a daba house with a tiled one at .the back.
The property which was sold was slightly larger in- area than that one.
But the Munsif held that the situation of the house of the neighbourhood properties all indicated that there was no under-valuation.
The property was subject to four mortgages.
The three mortgages
were for the sums of Rs. 1000/-,, Rs. 3500'/- and Rs. 1800/- and the
fourth mortgage was for Rs. 400/-
agg~·egating Rs., 6700/-. The sale
was held subject to those four mortgages.
Interest was at 12 per cent.
Interest on the pricipal amount would be more than Rs. 1000/- on
fE
the date of the sale.
The amount of Rs. 6125/-
which
was
the
auction price was subject to the mortgages.
Further there
was
a
maintenance charge in favour of one Kamakshamma for a sum of
Rs. 60/- per year.
In this background the Munsif held that the sale
was valid.
•G
11
Before the Subordinate Judge two points for consideration in the
appeal were whether there was material irregularity or fraud in the
publication and conduct of the sale and whether they sustai11cd substantial loss or injury.
The Subordinate Judge held that the sale on 7 June, 1960 without an order of adjournment was an irregularity.
The price shown in
the sale proclamation was Rs. 6000/-. The decree hold·~r valued the
property at Rs. 16,000/-. The
Amin valued
the
property
at
Rs. 20,000/- free from all encumbrances. The Subordinate Judge held
that the property was subject to the charge and the sale was subject to
mortgages.
The Subordinate Judge came to the conclusion that the
auction purchaser was the husband of the decree-holder and there was
gross under-valuation of the property and set aside the sale.
The decision of this Court in Laxmidevi v. Sethani Mukand Kanwar
& Ors.(1) held that it depends upon several relevant facts whether the
judgment debtor has suffered a substantial injury at a judicial sale.
(I) [1965J 1 S.C.R. 726.
t
..
P. K. RAO V. SITARATTAMMA (Ray, C. J.)
1001
The features brought out on the materials in this case are that there
was proper service ari°'d the sale was held on 7 June, 1960 !>~cause the
previous day was a public: holiday.
The judgment debtors did not give
their valuation.
The property sold was subject to
mortgages
.and
charge.
The decree holders have been kept out of the fruit of the
decree for about 17 years.
The attempt on the part of the judgment
debtors to set aside the sale was an afterthought as was found by the
Munsif.
The Subordinate Judge was impressed with the suggestion that
the property was under-valued.
The Subordinate Judge was
wrong
there.
The Munsif was correct in his conclusion and reasons that the
property sold was subject to mortgages and charges and was sold at
the correct price taking into consideration the price in the neighbourhood and other evidence on record.
A
B
The High Court found that there was no allegation of substantial
C
injury .in the petition.
It appears from the record that the Trial Court
and the first Appellate Court addressed themselves at length on the
question of substantial injury.
Parties were heard.
They made their
submi§sions.
The conclusions of the Trial Court and the Appellate
Court are there.
Counsel for the appellant submitted that if we set aside the juclgD
ment of the High Court, the matter would have to be remanded for
hearing on other points.
It will serve no useful purpose to send the
matter to the High Court on other qu-~stions. There has been substantial justice done to the parties.
The judgment of the Trial Court
was wrongly reversed by the first Appellate Court ..
The High Court was not unjustified on the materials to hold that
E
the application for setting aside the sale was bald and there was no
proper allegation of substantial injury to the judgment debtors.
Sometimes, however, there may not be express aliegations of substantial injury and the same may appear to be implicit from all facts and circumstances alleged.
In the present case, the Trial Court as well as the
first Appellate Court heard the parties and decided the case on the
footing that there were allegations of substantial injury to the judgF
ment debtors.
For these reasons we proceed on the basis that the allegations in
the petition could be read to imply substantial injury to the ~judgment
debtors.
It is not necessary to remand the matter to the High Court
because we are of opinion that the judgment of the Trial Court is
correct and should be restored.
We, therefore, dismiss the appeal.
G
Tlie appellants will pay costs to the respondents.
P.B.R.
Appeal dismissed.