Andhra HC (Pre-Telangana)
Gorrela Varalakshmi vs Gundu Ratnam @ Ratnavathi And Anr. on 28 January, 2003
Equivalent citations: 2003(2)ALD859, 2003(2)ALT599
JUDGMENT P.S. Narayana, J.
1. At the request and with the consent of both the Counsel, the main Civil Miscellaneous Appeal itself is heard by this Court and the same is being disposed of.
2. This Civil Miscellaneous Appeal is filed by the unsuccessful petitioner in E.A.No.145 of 2002 in E.P. No.32 of 2001 in O.S. No.7 of 2000 in the file of the Court of Senior Civil Judge, Pithapuram, East Godavari District.
3. The facts in nutshell are as specified hereunder. The appellant herein, the petitioner in E.A. No.145 of 2002 in E.P. No.32 of 2001 in O.S. No.7 of 2000 on the file of the Senior Civil Judge, Pithapuram, is the decree holder in E.P.No.25 of 2002. in O.S. No.7 of 2002 on the file of the same Court. The second respondent is the judgment debtor in both the execution petitions. The first respondent, the decree holder in E.P.32 of 2001 in O.S.No.7 of 2000, brought the schedule property for sale in the said E.P. and the appellant filed an application E.A.No.98 of 2002 praying for the relief of rateable distribution. It is stated that the first respondent gave measurements and value in the same proclamation in execution petition for part of the schedule property but the entire schedule property was brought to sale in public auction by the first respondent and the first respondent became the highest bidder in the auction held on 5-7-2002 by colluding with the bidders with a view to cause substantial injury and loss to the appellant herein. The schedule property was not sold for the value prevailing in the market and the first respondent became highest bidder for only Rs. 1,56,000/- which is a very low price. Even as per the Registrar's valuation, the schedule property is worth about Rs.2,16,000/-. The other bidders, who had participated in the auction, have no capacity to purchase the schedule property and thus the auction was conducted in the absence of bona fide bidders and also insufficient number of bidders. It was also stated that there is collusion between the respondents and there is material irregularity in publishing and conducting the auction and the value of the schedule property realised in the auction is grossly inadequate and very low and in view of the same the appellant had sustained substantial injury and loss for satisfaction of the decree obtained by her. In the said circumstances, the appellant, as already referred supra, as a person interested in getting the rateable distribution, had filed the application E.A.No.I45 of 2002 in E.P.No.32 of 2001 in O.S. No.7 of 2000 on the file of the senior Civil Judge, Pithapuram under Order 21, Rule 90 Civil Procedure Code (hereinafter referred to as 'Code' in short) for setting aside the same.
4. The first respondent had resisted the application and had taken a specific stand that the collusion is otherwise. The suit proceedings and the execution proceedings between the appellant and the second respondent were made in undue haste in collusion with each other only with a view to delay and defraud the first respondent. There is no material irregularity or collusion in between the first respondent and the second respondent. It was also stated that the first respondent obtained permission to participate in the Court auction and the first respondent bona fide became the highest bidder in the auction aforesaid. There is no irregularity in the proceedings of the auction. It was also stated that the appellant is having knowledge of the auction. But however, the appellant neither participated in the auction nor filed any application prior to the auction although she filed an application claiming for rateable distribution. It was also stated that the valuation certificate is of no help. The upset price fixed by the Court cannot be questioned and the appellant is only a tool in the hands of the family members of the second respondent and unless and until the amount is deposited in Court the appellant is not having any locus standi to question the proceedings. The second respondent also filed a counter denying the collusion and had taken a stand that similar application E.A.I46 of 2002 was filed by the second respondent for setting aside the sale on the grounds of irregularities and fraud committed by the first respondent.
5. The appellant-petitioner was examined as P.W.1 and Exs.A.1 to A.6 were marked. No other evidence was let in on behalf of the respondents. The learned Senior Civil Judge, Pithapuram on appreciation of both oral and documentary evidence came to the conclusion that there are no merits in the application filed by the appellant and accordingly dismissed the same by an order dated 27-11-2002 and aggrieved by the same the appellant had preferred the present Civil Miscellaneous Appeal.
6. Ms. Anjanadevi Satyanarayana, learned Counsel representing the appellant had requested for calling for of the records for disposal of the main civil miscellaneous appeal and the records also had been accordingly called for. The learned Counsel for the appellant with all vehemence had submitted that the appellant is a person interested in getting reasonable market value for the property sold since the appellant is claiming rateable distribution and in that view of the matter the appellant is interested in questioning the present Court auction sale. The learned Counsel had also taken me mainly through the language employed in Order 21, Rule 90 of the Code and had contended that in view of the express language there cannot be any doubt that a person claiming rateable distribution is a person interested who can definitely maintain an application under Order 21, Rule 90 of the Code. The learned Counsel also submitted that in the proclamation incorrect particulars are given and only lesser extent was shown giving wrong measurements and the recitals in Ex.A.2 coupled with the evidence of P.W.I clearly establish this aspect and by virtue of this misdescription of the properties reasonable price was not fetched and thus substantial injury was caused to the appellant. The learned Counsel had contended that as per Ex.A.2, the measurements of the property are 6.706 x 4.572 meters which corners to 31,900 sq. meters. But in the E.P. schedule the property is shown as 5.03 x 3.20 meters which comes to 16.960 sq.meters and thus the extent shown is almost 50% less of the property which was sold in Court auction. The learned Counsel also had drawn my attention to the recitals in Ex.A.2 and also had taken me through the evidence of P.W.1 in this regard. The learned Counsel also had contended that Ex.A.3 the valuation certificate issued by the Sub-Registrar, Pithapuram shows the market value of the property sold at Rs.2,16,000/- and the property was sold for only Rs. 1,56,000/- which is grossly inadequate. The learned Counsel also had taken me through the other documents Exs.A.1, A.4, A.5 and A.6 and had contended that substantial injury was caused because of the said misdescription of the property which had definitely resulted in securing inadequate price in the Court auction and on this ground the sale is liable to be set aside. The learned Counsel also pointed out that the appellant had discharged the burden and no contra evidence had been placed on behalf of the first respondent as decree holder and in the light of the facts and circumstances of the case, the Court below should have accepted the evidence of P.W.I coupled with the documents and should have allowed the application instead of dismissing the application to set aside the sale. Strong reliance was placed on the decisions reported in Veera Raghavaiah v Singa Rao, , Lebum Sudhokara Reddy v. Gandavaram Ramasubbamma, 1997 (6) ALD 229, Jaikisandas Balchand Pamnani v. Municipal Corporation of Greater Bombay, ; Ramasesha Iyer v. Ramanujachariar, AIR 1935 Mad. 459, Suraj Narain v. Hardwar Singh, AIR 1925 Patna 461, and Naganna v. Venkatrayulu, AIR (32) 1945 PC 178.
7. Per contra Sri T. Durga Prasad Rao with all vehemence had contended that the decree obtained by the appellant itself is an ex parte decree and only with a view to defeat the rights of the first respondent this litigation was thought of by the second respondent as judgment debtor and absolutely there are no bona fides on the part of the appellant. The learned Counsel also had further contended that there is no dispute about Ex.A.2. At the outset it was pointed out that a similar application E.A.No.146 of 2002 was filed by the second respondent-judgment debtor and the same was dismissed by the same Court on 4-10-2002 holding that the second respondent judgment debtor had not raised any objection at any point of time regarding the measurement of the property and for the first time the same was raised in E.A.146 of 2002 and in view of the language of Order 21 Rule 90(3) of the Code such objection cannot be sustained. The learned Counsel, while pointing out all the details, meticulously had drawn my attention to the description of the property and had explained that the property is clearly identifiable within specific boundaries and the measurements specified to the plinth area of the building and the total site appurtenant thereto had been specifically described within the specific boundaries and inasmuch as the description of the property is clear, it cannot be said to be misdiscreption. The learned Counsel also submitted that to attract the provisions of Order 21, Rule 90 of the Code, the following essentials are to be satisfied:
(1) There must be a material irregularity or fraud in publishing or conducting the sale.
(2) Such material irregularity should have caused substantial injury.
(3) Such substantial injury should have been caused on account of material irregularity alleged.
The learned Counsel also had contended that in the light of the facts and circumstances of the case, the appellant had miserably failed to discharge the burden and hence it is immaterial whether the first respondent had let in any evidence or not in this regard. The learned Counsel also had taken me through the evidence of P.W.1 and had pointed out to the cross-examination particularly where specifically it was suggested that this is a collusion game on the part of the appellant which is being played at the instance of the second respondent-judgment debtor. Elaborate arguments had been advanced relating to the description of the property given and submissions were made to the effect that these had not resulted or affected the Court sale in any way in fetching the reasonable price. The learned Counsel also had drawn my attention to the Sub-rule (3) of Rule 90 of Order 21 of the Code. It was also pointed out that the appellant herself had valued this property at Rs.2,00,000/-and the appellant also had described the self-same property within the same boundaries. The learned Counsel also had commented about Ex.A.3 the valuation certificate and had pointed out how it would not help the appellant for the purpose of establishing the market value as on the date of the conduct of the auction. The learned Counsel also had taken me through the impugned order made in the present civil miscellaneous appeal and had contended that convincing reasons had been given by the learned Senior Civil Judge, Pithapuram and hence such findings need not be disturbed in the present appeal. The learned Counsel also had submitted that even otherwise it is not misdescription of the property but the property clearly described at the best with an omission to give certain particulars relating to the other vacant area. The learned Counsel also had submitted that the decision in Veera Raghavaiah case (supra) is definitely distinguishable on facts. Strong reliance was placed on the decisions reported in Arunachellam and another (By Their Guardians), 1889 (12) ILR Madras PC 19, Ramdasjee Varu v. Tirupathi Devasthanams, , V.V.Namyanchetty v. N.Dhanamma, ; V. Submmanyam v. Seetha Ramanjeneyulu 1994 (2) An.WR 363, Radhey Syyam v. Shyam Behari, , and N. Mohan Kumar v. B.L Laxmi Narasimhaiah, .
8. Heard both the Counsel at length and also perused the oral and documentary evidence available on record.
9. The factual matrix relating to the dispute had been narrated supra in detail and all those details need not be repeated again. The main controversy between the parties is that the appellant on the one hand contending that because of misdescription of the property in giving measurements, the property was sold at an inadequate price by virtue of which the appellant had sustained substantial injury in not getting any amount by way of rateable distribution though she is also a co-decree holder along with the first respondent as against the second respondent judgment debtor and on the other hand the first respondent decree holder taking a stand that there is no misdescription of the property at all and the property was specifically described with clear boundaries and hence it had not resulted in any injury nor substantial injury so as to interfere with the sale which was already knocked down in favour of the first respondent decree holder. The appellant who was examined as P.W.I had sworn to an affidavit relating to the Chief-examination and she was cross-examined at length and subsequent thereto this witness was recalled as per order in E.A.No.236 of 2002 and again she was further examined- in chief and was also cross-examined. In the chief-examination, no doubt it was stated by P.W.1 that the first respondent brought the bidders, who are her henchmen and relatives and who are not bona fide bidders and the first respondent became the highest, bidder for the entire schedule property for Rs.1,56,000/- and this can be the value for a portion of the schedule property and not for the total property. It was also stated that she filed valuation certificate issued by the Sub-Registrar, Pithapuram to prove that the value of the schedule property will be about Rs.2,16,000/-. P.W.1 also had stated that due to collusive auction the property did not fetch the actual value to satisfy the decree of the first respondent and also the appellant as well. Exs.A.l to A.3 were marked initially and after recalling this witness Exs.A.4 to A.6 were marked. P.W.1 was cross-examined at length about the aspects relating to her capacity and also the income. P.W.I admitted that the second respondent remained ex parte and she obtained ex parte decree and she was not present at the time of sale before the Court and her son is not a party in the application for rateable distribution. P.W.I also deposed that she saw paper publication and she was aware that the sale is going to be held on 5-7-2002 but she did not come to Court and she did not put any bidder on her side to participate in the auction and she did not file any application for adjournment of the sale at least stating that either herself or her bidders will participate in the auction. The witness also deposed that she is not aware of the facts and her son alone has knowledge of the details. P.W.I further deposed that she came to know that the bidders who participated in the auction belonged to the caste of the first respondent-decree holder and no doubt certain suggestions were denied. After recalling this witness on 15-1-2002 in the cross-examination it was specifically suggested that the suit filed by the appellant is only a collusive suit and she admitted that she does not know how much extent of property was got attached. As already referred supra, except this evidence of P.W.1 there is no other evidence let in on behalf of the appellant. No doubt no evidence was let in on behalf of the respondents at all. Ex.A. 1 is the certified copy of E.P.32 of 2001 in O.S. 7 of 2000 with schedule. I had gone through the schedule describing the property at all stages and it is the description of the building within the specified boundaries. Ex.A.2 is the registration extract of the sale deed of schedule property dated 1-2-1967; Ex.A.3 is the valuation certificate issued by the Sub-Registrar, Pithapuram dated 8-7-2002: Ex.A.4 is the certified copy of the decree in O.S. No.7 of 2002 on the file of the Senior Civil Judge, Pithapuram dated 21-3-2002: Ex.A.5 is the certified copy of petition and affidavit in I.A.54 of 2002 in O.S. No.7 of 2000 with docket orders dated 14-3-2002. Likewise Ex.A.6 is the certified copy of the attachment warrant and Amin's report in I.A.54 of 2002 in O.S.7 of 2002 dated 20-2-2002. It is no doubt true that this is not an application filed by the judgment debtor but an application filed by the person claiming rateable distribution. Order 21, Rule 90 of the Code reads as hereunder:
"90. Application to set aside sale on ground of irregularity or fraud:--(1) Where immovable property has been sold in execution of a decree, the decree holder or the purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it, unless upon the facts proved, the Court is satisfied .that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) 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, Explanation :--The mere absence of, or defect in, attachment of the property sold shall not by itself be ground for setting aside the sale under this rule.
Sub-section (3) specifically says that no application to set aside the sale under this rule shall be entertained upon any ground, which the applicant could have taken before the date on which proclamation of sale was drawn. It is no doubt true that a person claiming rateable distribution will be a non-party to the proceeding but however a careful reading of Sub-section (1) with Subsection (3) will clearly go to show that Subsection (3) is applicable in all cases covered by Sub-section (1) and hence the person claiming rateable distribution of assets cannot stand on a different footing. Be that as it may, it is pertinent to note that the second respondent judgment-debtor had not raised this objection relating to the alleged misdescription or non-mentioning of the measurements clearly at any point of time and in fact a similar question was raised by the second respondent judgment debtor in E.A.146 of 2002 and the same was dismissed by the learned Senior Civil Judge, Pithapuram dated 4-10-2002. As can be seen from the material available on record even in Ex. A. 5 the same boundaries are given and no measurements had been specified. The evidence of P.W.1 also is not clear or categorical on this aspect. Except placing strong reliance on Ex.A.2, no other evidence had been adduced in this regard. The stand taken by the appellant is that the value of the schedule property will be around Rs.2,50,000/- and even as per Sub-Registrar's valuation the schedule property is worth about Rs.2,16,000/- but the property was purchased in auction for only Rs. 1,56,000/- which is a very low price. As already specified supra to invoke the provisions of Order 21, Rule 90 of the Code the following essentials are to be satisfied :
1. There must be a material irregularity or fraud in publishing or conducting the sale.
2. Such material irregularity should have caused substantial injury.
3. Such substantial injury should have been caused on account of material irregularity alleged.
Ex.A.3 was got on 8-7-2002 and the measurements also had not tallied with the measurements in the E.P. schedule and hence Ex.A.3 especially in the light of the evidence of P.W.I alone may not be of any help in arriving at a conclusion relating to the actual market value of the property as on the date of the auction. At any rate, in view of the insufficient evidence in this regard it cannot be said that the burden had been discharged by the appellant relating to this aspect. Furthermore, the appellant already filed E.A.98 of 2002 praying for rateable distribution and though the date of auction was within the knowledge of the appellant, she had not taken any steps either to get the sale postponed or to get the bidders to participate in the said auction nor any attempt was made on her part in making an attempt to participate in the aforesaid auction. Except making certain vague allegations relating to the bidders who had participated in the auction no other evidence is forthcoming. Hence, I am of the considered opinion that the appellant had not discharged her burden in accordance with law so as to attract the conditions specified in Order 21, Rule 90 of the Code. As already specified supra, the property which had been solely described within the boundaries, is a well identifiable property and the bidders had participated in the auction and the sale was knocked down in favour of the first respondent decree holder. The grounds raised may at best amount to omission in giving certain measurements and every omission cannot be said to be a material omission so as to result in an injury or substantial injury within the meaning of Order 21, Rule 90 of the Code. Except the evidence of P.W.1 there is no other evidence available on record. In Ramdasjee case (supra) the Division Bench of this Court held that material irregularity per se will not invalidate the sale and such irregularity will have the effect of avoiding the sale only if the connection is established between them and the inadequacy of the price realized at the sale. In Mohan Kumar's case (supra) at page 485 this Court was pleased to observe as follows:
"Keeping in view the dicta laid down in the aforesaid judgments, it has to be held that the view taken by the lower Appellate Court is contrary to law laid down by the Supreme Court. What has to be considered is that the procedure as contemplated under Order 21 C.P.C. has to be followed meticulously. If any irregularity creeps in that process, on that ground the sale cannot be set aside unless such irregularity is a material irregularity, which goes to the root of the matter and such material irregularity caused substantial loss to the judgment debtors. But, in the instant case, it is not established that any substantial loss caused. However, the judgment debtors remained ex parte and they did not make objections at any point of time. When the notices were served it is incumbent on their part to participate in the proceedings and file their respective objections. The most important omission committed by the judgment debtors is that at the time of settlement of proclamation, they did not participate even though the notices were served. Another important question that has to be inferred in this regard was that if the judgment debtors felt that the property fetched ridiculously low amount in the auction in such case, nothing prevented them from claiming the very same property by depositing the necessary amounts before the Court. Thus, it is clear that the judgment debtors wanted to play hide and seek game so as to keep the litigation alive."
In Narayan Chetty's case (supra) the Division Bench of this Court had arrived at a conclusion that it is not sufficient if the judgment debtor proves irregularity being committed in publishing or conducting the sale under Order 21, Rule 90 C.P.C. and he is further required to satisfy the Court that he has suffered substantial injury by reason of such irregularity or fraud and if he has not proved that he has sustained substantial injury by reason of such irregularity or fraud the sale cannot be set aside even if irregularity in publishing or conducting the sale is committed. The same view was expressed in Radhy Shyam 's case (supra).The Apex Court in the aforesaid decision at page 2341 had observed as follows:
"Rule 90 of Order 21 of the Code, as amended by the Allahabad High Court, inter alia provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the Court is satisfied that the applicant has sustained injury by reason of such irregularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realized in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is that there was not only inadequacy of the price but that that inadequacy was caused by reason of material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity."
The same view was expressed in the decision reported in Subramanyam's case (supra). Strong reliance was placed on the decision in Veera Raghavaiah's case (supra). In the said case where description of the property being sold was shown as mere land in sale proclamation without reference to rice mill and godown existing it was held that such sale suffers from material irregularity resulting substantial injury to the judgment debtor and hence the sale is liable to be set aside. This decision of the Division Bench of this Court is distinguishable on facts. In the present case, the grievance of the appellant is -that because of the non-mentioning of accurate measurements serious prejudice is caused inasmuch as it had resulted in fetching low price at the Court auction sale. As already discussed supra, the schedule property was described in specified boundaries clearly identifiable referring to the building and the measurements. No doubt elaborate contentions had been advanced relating to arithmetical calculations and the difference between the measurements mentioned in the E.P. schedule, proclamation and the other proceedings relating to the present E.P. and Ex.A.2. I had carefully gone through all the relevant records and the property had been clearly described within the specified boundaries with the building and at any stretch of imagination it cannot be said that there is misdescription of the property and at best it may be an omission in not mentioning the total measurements within the specified boundaries but definitely the schedule mentioned identifies property with the building within the clear boundaries and hence this kind of omission cannot be said to have resulted in any substantial injury, this may not fall under the misdescription of property. In Arunachalam case (supra), it was held that even if it is assumed that the property had been sold for less than it ought to have fetched, such substantial injury as inadequacy of price should have been proved to have occurred as a result of such irregularity that is the alleged misdescription. In Jaikisandas case (supra) it was held that material description of the property is with a view to attract more persons to participate in the auction and also with a view to get the reasonable price at a Court sale. In view of the clear description of property given in the present case, it cannot be said that in any way such object is defeated or any substantial injury had been caused in view of the description given in the property within the specified boundaries. In Ramasesha Iyer case (supra) it was held that substantial injury by reason of material irregularity may be proved not only by direct evidence but also by circumstantial evidence. It was also further held that where property is grossly undervalued and is sold for low price inadequacy of price can be presumed to be the result of undervaluation. In Naganna case (supra) it was held that the burden may be discharged not only by direct evidence connecting the material irregularity or fraud with the substantial injury but also by circumstantial evidence, that is the evidence which a reasonable inference may be drawn that substantial injury was the result of the material irregularity or fraud. In Suraj Narain case (supra) it was held that where there was material irregularity in sale proclamation and inadequate price had been realized, setting aside safe was held to be right. The same view was expressed in the decision reported in Nagendra Iyer v. Varadaraja Filial, .
10. On a careful perusal of the description of the property and in the light of the view taken by me as expressed supra that every omission and discrepancy in the schedule may not amount to material omission or material discrepancy so as to result in substantial injury within the meaning of Order 21, Rule 90 of the Code, there must be sufficient material or proof to establish that omission to specify the accurate measurements had some nexus and in fact had resulted in securing of inadequate price at the Court auction and in the absence of such evidence the Court auction sale cannot be set aside on such a ground. It is needless to say that the mere inadequacy of price always cannot be a ground for itself for setting aside the sale. Apart from these aspects, the conduct of the appellant also is of some relevance and here is a party who had got an ex parte decree in undue haste and had moved an application seeking the relief of rateable distribution, had not taken any steps to get the auction postponed and though she had knowledge of the date of auction and all these aspects coupled with the specific suggestions to P.W.I will clearly go to show and probablise the entire collusive game played by the appellant at the instance of the second respondent judgment debtor to defeat their rights of the first respondent-decree holder in realizing the fruits of the decree obtained by the first respondent decree holder. This is the only conclusion that can be drawn from the series of events and also the facts and circumstances of the present case. In Leburu Sudhakara Reddy case (supra) it was held that where application was filed by he petitioner to set aside the sale of property in pursuance of a decree obtained by the respondent on the ground of irregularities in the sale notification and the petitioner also is a person holding a decree for money against the same judgment debtor and he filed an E.P. for a direction to garnishee to deposit the amount in Court, it cannot be said that he has no locus standi to file the application on the ground that he has not filed the E.P. for attachment and sale of the property. As far as the maintainability of the application to set aside the sale under Order 21, Rule 90 of the Code is concerned, there cannot be any controversy in the light of the express language of Order 21, Rule 90 of the Code itself and at the instance of the party seeking rateable distribution definitely application under Order 21, Rule 90 of the Code is maintainable. In fact this aspect was not even seriously controverted by the Counsel representing the first respondent. No doubt serious attempt was made by the Counsel for the appellant as a last resort that inasmuch as the circumstances pointed out the nexus between the misdescription and the inadequacy of the price fetched it can be taken that that burden had been discharged by the appellant and on this aspect the appellant is bound to succeed especially in the light of the fact that no evidence was let in by the first respondent. I had already expressed the opinion after perusing the documents that minor omissions will not amount to misdescription of property so as to result in causing any substantial injury within the meaning of Order 21, Rule 90 of the Code since the property had been well described in specific boundaries and clearly identifiable and the object of description of property .for the purpose of inviting more and more bidders had not been defeated in any way by such minor omission or discrepancy as it may be called. Hence inasmuch as the appellant had miserably failed to discharge the burden in establishing any one of the ingredients under Order 21 Rule 90 of the Code, this Court has no other option except to arrive at a conclusion that the appeal is devoid of merits and the same is liable to be dismissed.
11. In the result, the Civil Miscellaneous Appeal is dismissed. In view of the fact that the appellant had approached the Court only on the ground of reteable distribution, this Court makes no order as to costs.