Repaka Mamillayya and Others vs Addepalli Venkataratnam

This appeal and the revision petition are against an order of the lower appellate Court setting aside a Court-sale. We shall confirm that order

with reference to our powers u/s 151, Civil Procedure Code; and it is therefore necessary to state fully the facts which justify our taking that

exceptional course.

During the progress of the Court sale in question the sons of the judgment-debtor, here respondent, filed a suit for partition of the property and

obtained an interim injunction staying the sale. That injunction is not before us; but it is not alleged that it was not in the ordinary form. After the

injunction had been granted, an attempt seems to have been made to serve it on the decree-holder; but he had left the Court, although (as appears)

his Vakil was still, there and took part in the proceedings next to be referred to.

Those proceedings consisted in an application by the judgment-debtor for the adjournment of the sale on the ground that ""the bidders had come

and gone away thinking that the auction would not take place."" The application was heard at once in the presence of the decree-holder''s Vakil.

The judgment-debtor, who was not the party who had obtained the injunction, did not rely on it directly in the first instance, but simply refer-ed this

application for adjournment; and his rejection of it is the irregularity or, as the lower appellate Court has held the illegality relied on as a ground for

setting aside the sale, which was later in the day completed.

The District Munsif first rejected the allegation that the bidders had gone away, thinking that the auction would not take place, on the rather

unconvincing ground that, although some of the bidders might have gone, there were still three persons who were willing to bid; and it may be

observed that two of those persons are said to have been gumasthas of the two decree-holders, who had obtained rateable distribution of the sale

proceeds and eventually purchased the property. But there follows the remarkable portion of the District Munsif''s order, which we extract

verbatim : ""The petitioner says that some injunction has been said to have been passed and that most of the other bidders have consequently gone

away. A copy of the injunction has not been served admittedly on the decree-holder and it is said that the said injunction has been passed only half

to one hour ago; and no authority is shown as to how the executing Court can take any notice of an alleged injunction said to have been passed in

an injunction suit a short while ago."" It is clear from this that the existence of an interim injunction was relied on, by the judgment-debtor although it

is not explicitly referred to in his application. It is further, it must be at once observed, not suggested that the injunction having been passed was

ever withdrawn. It is possible that, as the District Munsif who in the first instance dealt with the present petition has held, the injunction was granted

on insufficient grounds and the partition suit was simply a device to frustrate recovery by the decree-holders, who were supporting the sale. But

that was immaterial. When the District Munsif had granted the injunction and so long as it stood, he had no duty but to give effect to it. The reason

stated in the halting words we have quoted from his order for not doing so was that he did not know of its existence; and it is, we recognise, easily

possible for a Court to forget the details of orders passed, however recently, in the press of business. But we can see no reason, and none is

suggested, why a Court cannot and should not verify an allegation, such as was in question in this case, by reference, which could easily have been

made, to papers, which had been disposed of in the words of the order before us ""only half to one hour ago."" We can only conclude that the

District Munsif deliberately shut his eyes to or at least perversely refused to ascertain what he had done.

This having (been the District Munsif''s disposal of the application for adjournment, we have to decide whether there was any contravention of

the law, constituting an illegality, on which the sale can be set aside. There is no doubt that as the authorities relied on before us show, a legal act,

done in breach of an injunction, will not ordinarily be invalidated on that account and that the only consequence of contempt of an injunction is the

penalty which the Court is competent to impose. But it is not suggested that any of those authorities relates to the case of proceedings actually

being prosecuted in the Court, the prosecution of which under the Court''s authority actually deprives its injunction of effect. Such a result we

cannot acquiesce in and we do not think that the law compels us to do so. It is no doubt true that the District Munsif''s conduct in the present case

was not, so far as we have been shown in contravention of any definite provision of law. On the other hand there is the fact that his action resulted

in what must be described, in the words of Section 151, as an abuse of the process of his Court; and we therefore hold that we are entitled to use,

as the lower appellate Court was entitled to use, the inherent power recognised in that section to prevent the consequences.

It remains only to refer to the excuse, which the lower appellate Court has charitably suggested for the District Munsif''s act. That excuse is that

the interim injunction was obtained without bringing to the notice of the Court full details regarding the sale and that, when the application was

made for adjournment, the District Munsif was ""naturally put out seeing that the petitioner himself set up his own sons to get the order passed

without bringing all the facts to his notice."" First, that is not the reason, which the District Munsif himself has given; and secondly, even if it had been

the reason, it was useless, since, so long as the injunction stood, it was not open to the District Munsif to deprive it of effect, whatever his second

thoughts as to the propriety of its issue.

Taking this view we confirm the lower appellate Court''s order and dismiss the appeal with costs. C.R.P. is dismissed.