Judgement

Appeal (No. 63 of 1943) from a judgment and order of the High Court (September 24, 1941) which modified a judgment and order of the Subordinate Judge of Mayavaram (February 15, 1939).

The following facts are taken from the judgment of the Judicial Committee—The question in this appeal was whether a sale of immovable property, including land in the village of Tiruvali, made in

Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar

153

execution of a mortgage decree obtained by the respondent against the appellants predecessor, was bad as regards the said land and should be so far set aside under Ord. XXI., r. 90, of the Code of Civil Procedure, on the ground of material irregularity and fraud in publishing and conducting the sale. The mortgage was executed on January 26, 1925, by one Srirangathammal in respect of land in three villages, including that of Tiruvali, to secure the repayment within one year of Rs.36,000, with interest at the rate of fifteen per cent. per annum. The mortgagor was the widow of the last male proprietor of the estate, holding therein the limited interest of a Hindu widow, and the appellant was the next presumptive reversioner. So far as regards the land in the village of Tiruvali and certain other lands, the mortgage was expressed to be made subject to a prior mortgage (hereinafter referred to as the "prior mortgage") dated November 16, 1924, by the same mortgagor in favour of third parties, to secure repayment of Rs.44,500 and interest. The prior mortgage included lands not covered by the respondents mortgage. In 1929, the mortgagees instituted a suit on the prior mortgage before the Subordinate judge of Mayavaram, joining the respondent as puisne mortgagee, and on August 12, 1929, obtained a decree for Rs.79,238.2.6, with a direction for sale if the moneys were not paid by February 12, 1930.

In 1930, the respondent instituted a suit before the same Subordinate Judge on his mortgage, and on October 7, 1930, obtained a preliminary decree for Rs.66,778.11.9, and on July 27 1931, a final decree. In 1931, in a suit instituted by the appellant, as next reversioner, against the said Srirangathammal for an injunction to restrain her from committing waste, a receiver was appointed for the estate, and on April 7, 1931, he was added as a defendant in the suit on the prior mortgage, and on July 27 he was added as a defendant in the suit on the respondents mortgage. On December 15, 1931, the respondent applied, under r. 66, sub-r. 2, of Ord. XXI., of the Code of Civil Procedure (By Ord. XXI., r. 66, of the Code of Civil Procedure — "(1.) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

"(2.) Such proclamation shall be drawn up after notice to the decree-holder and the-judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible—(a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to k now in order to judge of the nature and value of the property.

"(3.) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are k nown to or can be ascertained by the person mak ing the verification, the matters required by sub-rule (2) to be specified in the proclamation.

"(4.) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it t