ORDER
1. Civil Revision Petition Nos. 4 to 6 of 1992 arise from the judgment and decree dated 21-12-1991 passed by Sri T. Mahesh Hegde, II Additional District Judge, Dharwad, whereby the learned District Judge, first Appellate Court, allowed Miscellaneous Appeal No. 26 of 1986 and set aside the Trial Court's order passed in Miscellaneous Case No. 11 of 1964, dated 11-4-1986 on the file of the Principal Civil Judge, Hubli, dismissing the application filed by the judgment-debtor under Order 21, Rule 90 of the CPC and set aside the Court sale held on 28-9-1994 in Special Darkhast No. 6 of 1962.
2. The decree-holder obtained a decree in Special Suit No. 24 of 1954 on the file of the Civil Judge, Hubli, against the judgment-debtor, his four sons and others. A preliminary decree was passed on 18-1-1958 anda final decree was passed on 13-9-1961. Thereafter, the decree-holder filed the execution case against the judgment-debtor, his sons and others in Special Dharkhast No. 6 of 1962 for the recovery of Rs. 18,240/- 2 annas and 8 paise by sale of the mortgaged property, viz., CTS Nos. 4617 and 4618 of Ward No. I of Hubli city. In the course of the execution proceeding, these properties were brought to sale and CTS No. 4617 was sold on 28-9-1964 in favour of the auction purchaser for Rs. 61,500/-. The sale was sought to be set aside on the ground of fraud and material irregularity in the conduct of the sale. The applications filed by the judgment-debtors for setting aside the sale were dismissed by the Civil Judge, Hubli, by his order dated 22-1-1965. The correctness of the judgment of the Civil Judge was challenged by the judgment-debtors, who are respondents in these petitions, by way of Miscellaneous Appeal Nos. 7 and 8 of 1965 before the First Additional District Judge, Dharwad. The learned Additional District Judge found that there was some material irregularity in the conduct of auction sale, but dismissed the appeals on the ground that the judgment-debtors failed to establish that there were material irregularities in publishing and conducting the sale and held that no substantial injury was caused to the judgment-debtors. Accordingly, he dismissed the Miscellaneous Appeals No. 788 of 1965 on 16-9-1969- Aggrieved by that order, the judgment-debtors preferred two Civil Revision Petition Nos. 962 and 964 of 1971. This Court disposed of those revision petitions by upholding the finding recorded by the learned I Additional District Judge that there were material irregularities in publishing and conducting the sale, but set aside the finding that no substantial injury was caused to the judgment-debtors and others and remanded the matter to the Civil Judge, Hubli, for consideration of the question afresh as to whether the judgment-debtors and others had sustained substantial injury by reason of irregularities alleged, after giving opportunity to the parties to lead evidence as per the order dated 6-7-1971. After remand, the Execution Court again tried the matter and by its order dated 21-12-1991 held that the judgment-debtors have failed to prove, establish and show that the judgment-debtors suffered substantial injury on account of said irregularities as per the material placed on record. It also held, as had been held earlier, that the sale price of the property in question for Rs. 61,500/- was adequate with reference to the year 1964. After recording that finding, it rejected the application filed under Order 21, Rule 90 of the CPC. Feeling aggrieved by that order of the Execution Court, the judgment-debtors and others filed Miscellaneous Appeal No. 26 of 1986, before the Court below. The lower Appellate Court considered the entire material on record and held that the Civil Judge has rightly held that the price fetched in the auction of the property in execution, of decree in O.S. No. 24 of 1954 is quite adequate and has rightly been held that it cannot be said that the price fetched is inadequate. The Court below held that encumbrances to which the property has been subjected were not mentioned in the sale proclamation as required under Order 21, Rule 66(2)(c) of the CPC, The Court below observed that R.S. Mattikoppa and Umnabadi had recovered Rs. 22,000/- and Rs. 15,000/- respectively (in all Rs. 37,000) out of the auc-tion amount of Rs. 61,500/- and the decree-holder has received only Rs. 29,000/-. He has also further observed that because of the defects in the sale proclamation, i.e., non-mentioning or non-showing the encumbrance, and consequential material irregularity in publishing the same, the auction purchaser is not and will not be liable to discharge the encumbrance. Had the encumbrance on the property been mentioned in the sale proclamation, the sale in favour of the auction purchaser would have been subject to the encumbrance on the property, and the auction purchaser would have been subject to the encumbrance on the property, the auction purchaser would have been liable to discharge those encumbrances. It held therefore that the judgment-debtor has suffered loss of Rs. 32,500/-. Without disclosing the encumbrance, the property was sold for Rs. 61,500/- and therefore loss of Rs. 32,500/- has been caused to the judgment-debtor on the ground of non-disclosure of encumbrance while publishing the sale proclamation. Having recorded this finding, the Court below i.e., Appellate Court allowed the application filed by the judgment-debtor and set aside the sale under Order 21, Rule 90 of the CPC.
3. The learned Counsel for the parties pointed out that Umnabadi had realised only Rs. 9,515-58. The figure given by the learned Counsel is taken as correct as there is a mistake in this regard in the order of the learned Civil Judge. Again I have to repeat that R.S. Mattikoppa recovered only Rs. 22,896-77 and Umnabadi recovered only Rs. 9,515/- and the decree-holder recovered only Rs. 29,114-60. In total, according to the calculation, Rs. 61,498/- had been paid off. No doubt, the fact reveals that there were encumbrances on the property in respect of the mortgage debts due to R.S. Mattikoppa, Umnabai, M.D. Mestri and K.S. Karabi, in all amounting to Rs. 2,00,000/-. M.D. Mestri has not executed the decree. So also, K.S. Karabi has also not got executed the decree so far, though an order is in his favour and he has died.
4. Feeling aggrieved from the judgment and order of the lower Appellate Court, allowing the appeal and setting aside the sale, these three petitions, namely, CRP Nos. 4, 5 and 6 of 1992 have been filed. It appears that subsequent to the purchase of the property in Court auction, the purchaser transferred the property to the petitioners in CRP No. 4 of 1992. CRP No. 4 has been filed by the subsequent purchasers while CRP No. 5 of 1992 has been filed by the L.Rs., of the purchaser and CRP No. 6 of 1992 has been filed by the legal heirs of the decree-holder. All these revisions involve and raise common questions and therefore all these petitions are disposed of by this order.
5. I have heard Sri Tarakaram, learned Sr. Counsel, assisted by Sri Umesh Malimath and Sri G.S. Vishweswara for the petitioners and Sri Ajit Gunjal as well as Sri K.B. Adhyapak.
6. It has been contended on behalf of the revision petitioners that the lower Appellate Court has committed a jurisdictional error in setting aside the auction sale on the ground that encumbrances were not disclosed in the sale proclamation and therefore there was irregularity in view of this aspect of the matter. He also contended that M.D. Mestriand G.K. Veeraya Ummabadi been parties to the suit and therefore when the decree was sought to be executed, which provided for their money to be paid also, from the sale proceeds, their amounts were got paid from the sale proceeds as their amounts were got paid from the sale proceeds as per terms of the decree itself, bindings on the judgment-debtor as such there was no question of non-disclosure of encumbrances, as far as these two persons are concerned. The learned Counsel further contended that had encumbrance been shown, auction purchaser even then could not have been subjected to the liability to discharge of encumbrances in view of the directions contained and given the decree itself. That in view of the directions under the decree itself and in accordance with terms of decree, M.D. Mestri and G.K. Umnabadi did realise the sums referred to above from the sale amount realised after auction sale of the property referred to above as such the same cannot be said to be the result of any such irregularity as non-mentioning of encumbrances and finding of Appellate Court is vitiated by jurisdictional error amounting illegality, in exercise of jurisdiction. It has been contended by the learned Counsel for the revision petitioners that the decree-holder had no knowledge of any encumbrance or mortgage in favour of R.S. Mattikoppa and K.S. Karabi. The learned Counsel contended that therefore, non-mentioning of encumbrances cannot be said to be an irregularity, and when notice had been given to the judgment-debtor, he did not participate and did not raise any such objection to the sale proclamation and did not seek mentioning of the alleged encumbrance, and on account of their failure to raise the objection at the stage of Order 22, Rule 66 itself, in spite of notice served on them, the judgment-debtors have been barred to raise this plea at the stage under Order 21, Rule 90 in view of principles of estoppel and res judicata.
7. Sri Tarakaram further urged that non-mentioning the name of these two persons by itself cannot be injurious to the judgment-debtor because it in all likelihood pursuaded the auction purchasers to offer high price. It is further contended that the encumbrance on the property having not been mentioned in the sale proclamation, the sale in favour of the auction purchaser is not always free from charge in view of the latter part of Section 100 of the Transfer of Property Act.
8. The learned Counsel further contended that in view of directions I, II, III, IV and V, the defendants 6 and 9, i.e., M.D. Mestri and G.K. Umnabadi were entitled to recover their amounts under the decree for price fetched by sale of property mortgaged, i.e., after the satisfaction of plaintiffs' claim under the decree, as such it cannot be said that judgment-debtors have suffered any injury because of the alleged irregularity, if any, on account of non-mentioning of encumbrances relating to defendants 6 and 9. Sri Tarakaram, learned Sr. Counsel further urged that the finding that the judgment-debtor has suffered substantial injury is based on no evidence, as such the finding that because irregularity in publishing and conducting the sale by non-mentioning of encumbrance has resulted in substantial injury suffers from jurisdictional error. So far as the price is concerned, it is a concurrent finding of the two Courts, i.e., the Civil Judge and the Additional District Judgeand also a finding has been recorded by this Court on an earlier occasion that the sale price of Rs. 61,500/- has been adequate and this finding is binding on the parties. Therefore, it cannot be said that the judgment-debtor suffered irreparable loss, as if the mortgages would have been shown the price, the property fetched might not have been Rs. 61,500/-, but would have been on the lower side. He further contended that since there is a jurisdictional error, the appellate order, i.e., order impugned, deserves to be set aside.
9. The contentions of the petitioners have been opposed by the learned Counsel for respondents. Sri Ajit Gunjal contended that had the encumbrance been shown, the purchaser would have been aware of it and then, the respondent, judgment-debtor, would have become free, as the purchaser would not have been free from the liability to pay off debts and clear encumbrance, but because of the non-mentioning of encumbrances, as such the judgment-debtor has suffered substantial injury and loss and the Court below, i.e., the Appellate Court rightly held the judgment-debtor suffered substantial injury. Therefore, non-mentioning of encumbrance definitely can be attributed to the decree-holders' conduct, irrespective of the fact that the application, for impleading him as a party has been rejected. Sri Ajit Gunjal pointed out that K.S. Karabi had obtained a decree for a sum of Rs. 8,000/- and he has not executed that decree so far; but he is not in a position to state or indicate whether that decree has been executed and the amount thereunder has been paid. Sri Gunjal further submitted that Order 21, Rule 90 of the CPC as applicable prior to 1976 Amendment did not contain any such sub-rule, as sub-rule (3) of Order 21, Rule 90 of the CPC that plea open at an earlier stage not raised at that stage, will not be entertained at the stage of Order 21, Rule 90 of the CPC and further doctrine of res judicata or estoppel are not applicable. Respondents' learned Counsel urged that no jurisdictional error has been committed by Appellate Court, so revision be dismissed.
10. The first question to be considered in relation to the encumbrance relating to K.S. Karabi and R.S. Mattikoppa in the context of the fact is that in spite of the judgment-debtors having been given notice of the date for setting of terms of proclamation under Order 21, Rule 66 of the CPC failed to raise that plea and to point out the encumbrances, to be mentioned; whether the judgment-debtors have been entitled to seek for setting aside the sale on such ground as non-mentioning of encumbrances and any irregularity and whether the judgment-debtors had suffered any substantial injury on account of such material irregularity.
11. The jurisdiction of this Court is confined only to jurisdictional error. If the auction had been set aside illegally, then this Court has got jurisdiction to interfere with the impugned Order and if there is no jurisdictional error under Section 115(a), (b) or (c) of the Code of Civil Procedure, then the revision has to be dismissed. As regards M.D. Mestri and Umnabadi are concerned, they were parties in the suit. A decree in their favour has also been passed for realisation of the amountfrom the sale proceeds of property mortgaged. There being the direction in the decree, then it was very much clear that the property was subject to mortgage and subject to the decree passed in their favour, and the decree being part of the application, it may be taken as their encumbrances were mentioned at the time when the sale proclamation was issued. There was no concealment. Further the terms of the decree did direct as under:
(1) That defendants 1 to 5 do pay to the plaintiff Rs. 12,180-10-8 with costs and future interest at 6% p.a. on Rs. 10,000/- from the date of the suit till full satisfaction on or before 24-5-1959 failing which plaintiff to apply for final decree,
(2) Defendants 1 to 5 do pay to defendants 6-A to 6-E (LRs. of Mestri) sum of Rs. 9,680/- with costs and future interest at 6% p.a. on Rs. 8,000/- from 22-11-1955 on or before 24-5-1959 failing which defendants 6-A to 6-E should apply for final decree.
(3) Defendants 1 to 5 do pay to defendant 9 (G.K. Umnabadi) a sum of Rs. 12,430/- with costs and future interest at 6% p.a. from 15-3-1955 till full payment on or before 24-5-1959 failing which defendant 9 is to apply for final decree.
(4) In the absence of defendants 1 to 5 paying the amount voluntarily, defendants 6-A to 6-E and defendant 9 are entitled to have their decretal dues realised out of surplus amount after the plaintiffs realising his decretal amount due by sale of mortgaged properties. Defendant 9 and defendants 6-A to 6-E should receive the decretal due in order of priority of the mortgage.
(5) In case the decretal dues of plaintiff and defendants 6-A to 6-E and defendant 9 are found to be insufficient by sale of mortgaged properties, then plaintiff and defendants 6-A to 6-E and defendant 9 have got their remedies open to apply against the defendants 1 to 5 personally.
12. The terms and direction under the decree specially Clauses IV and V very clearly indicate that in addition to the plaintiff, defendant 6's heirs (i.e., 6-A to 6-E) and defendant 9 have been directed, that in case defendants 1 to 5 fail to pay the decretal amounts voluntarily then plaintiff and defendants 6-A to 6-E and defendant 9 have to first realise their decretal amounts only out of the sale proceeds of mortgaged properties and if those proceeds are found to be insufficient to satisfy their decretal amount, then decree-holders, i.e., plaintiff and defendants 6-A to 6-E and defendant 9 to have recourse against judgment-debtors, i.e., defendants 1 to 5 personally. Decree and directions being specific, M.D. Mestri or his heirs, i.e., (Defendants 6-A to 6-E) and defendant 9 if realised their decretal sum to the tune as referred to above, it was not because of omission to mention any encumbrance or such irregularity, but only in pursuance of terms of decree, i.e., Clause IV of the decree. The lower Appellate Court acted illegally and with material irregularity in not applying its mind as well as in not considering to decree and the directions contained therein, when lower Appellate Court opined that asM.D. Mestri and Umnabadi realised their decretal sums referred to above, i.e., judgment-debtor suffered substantial injury by being deprived of sum of balance of sale price, i.e., Rs. 61,500/- minus plaintiffs decretal sum of Rs. 29,000/- = Rs. 32,500/-. In view of terms of decree itself, even if circumstances relating to M.D. Mestri and Umnabadi would have been shown the auction purchaser would not have been liable to discharge their debts, i.e., decretal sums, as decree has directed the decretal sums to be realised as per Clauses II to V of decree, i.e., from sale proceeds of mortgaged properties and thereafter by decree-holders proceedings against judgment-debtors, i.e., defendants 1 to 5 personally.
13. Thus considered this above finding of Court below, i.e., lower Appellate Court is vitiated by illegality on its part in exercise of jurisdiction as mentioned above and has to be set aside and is being set asie.
14. That as regards R.K. Mallikodappa and K.S. Karabi and if they knew that these present encumbrances were there on the property, it was the duty of the judgment-debtor to raise objection or to point out that to the Court and seek the mentioning of their names and encumbrances as relating to these two. That as the notice of date of setting of sale proclamation was given to them, i.e., judgment-debtors, they should have mentioned the same for being shown in the sale proclamation. In my opinion, such pleas could not be allowed and entertained under Order 21, Rule 90 of the CPC, particularly when persons who had been served with notices under Order 21, Rule 66 of the CPC who were having the opportunity of raising objection or pointing out such a defect in proclamation which were known to them, remained silent and did not raise proper objection before the Court under Order 21, Rule 66 of the CPC. Further, it could not be shown that irreparable loss or substantial injury has been sustained by the judgment-debtor, except a bare statement that if it would have been indicated, the judgment-debtor would have been free from the liability and the liability would have been passed on the auction purchaser. Whether the auction purchaser would be liable to pay the amount in spite of non-mentioning of their encumbrance is a different question. It was his duty to raise such a contention at the appropriate stage and no person is to be allowed to take benefit of his own fault or inaction or negligence. Therefore, it cannot be presumed that because of his non-mentioning of the encumbrance the judgment-debtor has suffered substantial loss, instead, I may say that it was his own inaction for which the judgment-debtor, respondent himself was responsible. If the encumbrances would have been mentioned, in my opinion, the property would not have fetched the price it fetched, i.e., for which it was sold, i.e., Rs. 61,500/- and it appears due to this apprehension also the judgment-debtor, remained silent, and did not at that time raise any objections to the failure of encumbrances being mentioned, which he now says should have been shown.
15. A Division Bench of the Allahabad High Court in Chuttan Lal v Mohd. Ikram Khan, at p. 548 has been pleased to make an observation, which clearly furnish the reply to the second point, the contention of the judgment-debtor that there was a non-compliance with the provisions of Order 21, Rule 66 inasmuch as the encumbrance on the properties were not specified in the sale proclamation. The Division Bench of Allahabad High Court in the case of Chuttan Lal, observed as under:
'. . . . An omission to mention the encumbrances in the sale proclamation cannot by itself be injurious to the judgment-debtor, because it is likely to persuade the auction purchasers to offer a higher price. Moreover, whatever irregularity there is committed at the time of the issue of a previous sale proclamation that irregularity is distinctly waived by the judgment-debtor if he agrees that the previous proclamation of sale should suffice and that there should be no further proclamation of sale'.
At page 550, their Lordships of Allahabad High Court in the above noted case further observe, after referring to provision added to Order 21, Rule 90 of the CPC as under:
'This amendment was made long before 1929. It seems quite clear to us that in view of this express addition, it is no longer open to the judgment-debtor to urge that the under valuations amounted to a material irregularity within the meaning of that rule. Notice was expressly issued to the judgment-debtor under Order 21, Rule 66 to appear and show cause. He had full opportunity of pointing out this mistake to the Court at the time. He refrained from doing it or omitted to do so. This ground should have been raised by him before the sale proclamation was actually drawn up. Not having raised any such ground he must be deemed to have waived it. He must therefore be estopped from now raising the same ground and urging that the under valuations were a material irregularity in the publication of the sale. The whole object of the amendment is that judgment-debtors should not sit idle and refrain from pointing out mistakes in the sale proclamation when they are given an opportunity to do so, and then after the sale has taken place, raise an objection in order to get that sale set aside. We think that in view of the express provision in this amendment, it is no longer open to the judgment-debtors to make the under valuations a ground of material irregularity. This was a view expressed by a Bench of this Court in the case of Abdul Raoof Khan v Qamrunnisa. The judgment-debtor is not estopped from showing that the actual value of the property was much more than what was announced in the original proclamation of sale in order to show that he had suffered substantial loss, but it would be incumbent upon him to show that this substantial loss, was the consequence of some othermaterial irregularity. He cannot be allowed to treat the undervaluation itself as a material irregularity when he failed to object at the time when he appeared on the former occasion'.
16. The observation of the Court was with reference to the failure of a party to raise objection in spite of notice. The judgment-debtor has to establish that there was not only substantial injury caused as a result of low price fetched, but also to establish that such a result was on account of the material irregularities or fraud in publishing the auction sale. Sub-rule (3) of Rule 90, Order 21 of the CPC provided that no application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. This provision clearly bars from setting aside of an auction sale where no application was made by the judgment-debtor on or before the date on which the proclamation of sale was drawn up. The ruling of the Allahabad High Court was long prior to the amendment of Order 21, Rule 90, which was substituted by Act 104 of 1976, with effect from 1-2-1977. No doubt the Allahabad High Court had as well amended and enacted a proviso to original proviso to Rule 90 of Order 21 of the CPC. The rule aforesaid as mentioned in Uttar Pradesh by Allahabad High Court recognised and applied the doctrine of estoppel in specific terms, Where a notice was given to judgment-debtors to appear and show cause before the settlement of the proclamation of sale and he had full opportunity of pointing out the mistake to the Court. The judgment-debtor should not have kept quiet and allow the things to happen resulting in change of situation and creation of third party interest, and third party investing the money as well, he can be held to be debarred from raising such plea at this stage in view of doctrine of estoppel and res judicata. When I so opine as above, I find support from the decision mentioned hereinafter, namely, Girdhari Singh v Hurdeo Naran Singh , (observations at p. 240) : T.R, Arunachallam Chetty v V.R.R.M.A.R. Arunachalam Chetty and Another.
17. It will be appropriate to quote here in extenso, the observations of their Lordships of the Privy Council on this aspect as hereunder:
'Therefore, as far as regards the objection that the description was insufficient, which is relied upon, as their Lordships understand, as vitiating the sale -- for that appeared to be the contention of the Counsel for the respondents -- the objection was not taken until the sale had been completed. The judgment-debtors knowing, as they must have known, what the description was in the proclamation, allowed the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olphers v Mahabir Pershad Singh (Law Rep. 10 Ind. Ap. 25), that if therewas really ground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant, that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed, and on that ground the High Court ought not to have given effect to this objection'.
18. In Dhirendra Nath Gorai v Sudhir Chandra Ghosh and Others, (para 18), the Supreme Court has observed thus:
'If that be the legal position, Order 21, Rule 90 of the CPC is immediately attracted. The concurrent finding of the Courts is that by reason of the non-observation of the provisions of Section 35 of the Act no substantial injury was caused to the judgment-debtor. Further, though notice was given to the judgment-debtor, in one case he did not file objections at all and in the other case, though the judgment-debtor filed objections, he did not attend at the drawing up of the proclamation. The sales are, therefore, not liable to be set aside under the terms of the said provision'.
19. In the case of Mohanlal Goenka v Benoy Krishna Mukherjee and Mathura Prasad Sarjoo Jaiswal and Others v Dossibai N.B. Jeejeebhoy and Kani Ram and Another v Smt. Kazani and Others (at para 28), doctrine of constructive res judicata does apply to execution proceedings where a plea which could be raised and ought to have been raised has not been raised will be deemed to have been decided against one who raises that subsequently. Here such plea of defect on the ground of non-mentioning any of the encumbrances which could and ought to have been raised under Order 21, Rule 66 of the CPC at the stage of settlement of sale proclamation, during execution proceedings, not to have been raised then could not be raised under Order 21, Rule 90 of the CPC stage as being barred by constructive res judicata doctrine.
20. The legislature has also given recognition specifically to it by enacting the proviso of sub-rule (3) to Order 21, Rule 90 by the CPC Amendment Act of 1976, which provides that the application to set aside the sale under Rule 90 shall be entertained upon a ground which theapplicant could have taken on or before the date on which the proclamation of sale was drawn up.
21. The Court below did not apply its mind to the doctrine of estoppel and constructive res judicata applicable, which was applicable as well to the case in hand before coming into force or substitution of present Rule 90, Order 21 which incorporated now in clear terms the said doctrine of estoppel, by enacting sub-rule (3) to Order 21, Rule 90.
22. Thus considered, in my opinion, the Court below had acted illegally and against the basic principles of law of estoppel 'waiver and constructive res judicata' in setting aside the sale on the grounds which were barred from being raised at the stage of Order 21, Rule 90 read with Section 115 of the Evidence Act. When it has not been shown by the judgment-debtor-owner that had encumbrances, if any, been mentioned, even then the property would have fetched price of Rs. 61,500/- or the higher sale price than Rs. 61,500/-, in my considered opinion, no substantial injury has been proved on account of irregularities, if any and the lower Appellate Court has really acted illegally in not applying its mind to the terms of decree as referred to above the doctrine of estoppel res judicata as has been mentioned above.
23. In this view of the above, in my opinion, the Court below has acted illegally as well as in excess of its jurisdiction in setting aside the above sale and the order of the lower Appellate Court passed in Miscellaneous Appeal No. 26 of 1986 dated 21-12-1991 also suffer from illegality to exercise the jurisdiction. When it allowed the appeal as well as when it, i.e., Appellate Court failed to apply its mind to decree, the terms under the decree, the doctrine of estoppel and res judicata etc., of law, and did set aside the order dated 11-4-1986 passed by the Civil Judge, Hubli, in Miscellaneous Case No. 11 of 1986. Thus considered the Revision Petition Nos. 4, 5 and 6 of 1992 have to be allowed and are allowed, the judgment and decree dated 21-12-1991 passed by the first Appellate Court, i.e., the II Additional District Judge, Dharwad in Miscellaneous Appeal No. 26 of 1986 is hereby set aside and that the order passed by the Execution Court dated 11-4-1986 in Miscellaneous Case No. 11 of 1964 rejecting the application of judgment-debtor under Order 21, Rule 90 of the CPC is maintained. That the auction sale held on 28-9-1994 in Special Darkhast No. 6 of 1962 is to stand confirmed, with the upholding of the order of Execution Court, rejecting application under Order 21, Rule 90 of the CPC as it had been ordered vide execution Court's order dated 5-1-1965.
24. Counsels on both sides fairly submitted that in view of CRP Nos. 4, 5 and 6 of 1992 having been allowed, CRP No. 1223 of 1992 has now become infructuous and is to be dismissed, hence it is accordingly dismissed.
25. Thus CRP Nos. 4, 5 and 6 of 1992 are hereby allowed and CRP No. 1223 of 1992 is dismissed. The parties to all the four revision petitions to bear their own costs respectively.