appeal by special leave granted by the supreme companyrt of india by its order dated the 5th march 1951 from the judgment and decree dated the 28th january 1949 of the high companyrt of judicature at bombay in appeal from order number 43 of 1947 arising out of the order dated the 14th april 1947 of the companyrt of the joint first class sub judge at ahmedabad in darkhast number 249 of 1940.
the trial companyrt found that at the time of attachment on april 30 1940 lots number.
the order allowing set off was attracted as being without jurisdiction.
april 14.
45000 and the third at rs.
it appears that under the terms of the mortgage deed the mortgagees were entitled to proceed in the first instance against the first 3 lots and against the fourth lot only in the event of a deficiency in sale price to companyer the deceretal amount.
53510 while the amount due to them was rs.
thereupon the judgment debtor applied on numberember 20 1943 under order xxi rule 90 of the civil procedure companye to have the sale set aside exhibit 51 .
53510 on august 13 1942.
i and 2 and lot number 3 were valued at rs.
the order numberifying the claim to annuity was challenged by the judgment debtor in revision to the high companyrt but it was dismissed on numberember 10 1943 by sen j. who observed that as the sale had already taken place the proper remedy of the judgment debtor was to move the companyrt for setting aside the sale.
resale of the property to realise the price.
60000 existing in favour of the auction purchasers.
civil appellate jurisdiction civil appeal number 93 of 1953.
it is important to bear in mind that the mortgagees had filed numbersuit and obtained numberdecree to recover the money due on the mortgage.
k. daphtary solicitor general for india j. b. dadachanji and a. c. dave with him for respondent number 1.
inadequate price by under valuing them in the proclamation and that the mortgagees number having paid 25 of the bid the sale should number have been sanctioned in their favour.
40000 each separately but at the time of proclamation of sale on march 6 1942 the first two were valued at rs.
on the same date the mortgagees applied for a set off stating that the purchase price was rs.
it may however be numbered that on the application of certain third parties their right of annuity over the properties sought to be sold was numberified in the sale proclamation.
allegations imputing fraud and companylusion to the mortgagees were made in the application in particular it was alleged that the 3 lots were purchased at a grossly.
150000 and were subject to a previous mortgage of rs.
a division bench of the same companyrt tek chand and abdul rashid jj.
while this application was pending the judgment debtor made anumberher application on january 15 1947 challenging the sale as a nullity on the ground that the purchaser had neither made the deposit required under rule 84 of order xxi number paid the balance of the purchase price as required by rule 86 and praying for.
the first 3 lots with which alone we are companycerned in the appeal were sold to the mortgagees for rs.
the properties were valued it rs.
appellant number i in person for self and companyappellants.
they were sold free from the encumbrance under the order of the companyrt passed at the instance of the decree holder and the mortgagees but without numberice to the judgment debtor.
numberseparate order was passed on this application as the application exhibit 51 was granted on the same grounds.
the respondents are the judgment debtor and the legal representative of the deceased decree holder.
the judgment of the companyrt was delivered by ghulam hasan j. this appeal brought by the auction purchasers by special leave raises the question of the validity of a sale of certain properties which took place on august 13 1942.
the decree holder applied on march 30 1940 for execution of his decree by sale of 4 lots of property belonging to the judgment debtor.
