The omission to give notice under Order 21 Rule 22 CPC does not invalidate a sale where the judgment-debtor or his representative had notice of the further execution proceedings.

K. RAMACHANDRA RAO, J.

( 1 ) THIS Civil Miscellaneous Second appeal is filed against the judgment and decree of the District Court, Nellore, in a. S. No. 79/66 allowing the appeal and setting aside the order in E. A. No. 226/61 it E. P. No. 146/60 in S. C. No. 201/56 sub-Court, Kavali and declaring that the court sale of the petition Schedule property held on 13-2-1961 in E. P. No. 146/60 was void.

( 2 ) THE auction-purchaser, Kaverl venkata Subba Reddy is the appellant in this appeal. The 2nd respondent, Talpagiri ranganadha Swami Temple, represented by its Executive Officer filed S. C. Suit No. 201/56 on the file of the Sub-Court, Nellore. against Band! Yelamanda reddy, the 1st respondenc therein, and obtiined a decree on 6-12-1957 for rs, 1,500/- and odd. In execution of the said decree in E. P. 146/60, the properties were sold and purchased by the appellant. The Judgment-debtor thereupon filed an application E. A. No. 226/61 for setting aside the said sale under sections 47 and 151 and Order 21, Rule 90 C. P. C. The sale was challenged on various grounds, that the attachment of the petition-schedule property was illegal and Irregular, that there was material irregularity in the publication and conduct of the sale, that the sale of the property was void, that the execution proceedings were taken fraudulently without the knowledge of the judgment debtor, and that the judgment debtor suffered substantial Injury by reason of the irregularities and Illegalities in the conduct of the sale.

( 3 ) THAT petition was contested by both the auction purchaser and the decree-holder. The learned Subordinate Judge framed the following points:-1. Whether the attachment of the petition schedule property was illegal, or alternatively, irregular ? 2. Whether there was material irregularity in the publication and conduct of the sale ? 3. Whether the sale of the petition schedule property was void ? Whether the execution proceedings resulting in the sale were conducted fraudulently and whether the petitioner was kept out of knowledge of his right to present this petition by the fraud; if any, practised by the respondents? Whether the petition is in time ? Whether the petitioner suffered any substantial Injury by reason of the sale ? whether the sale is liable to be set aside ?

( 4 ) ON a consideration of the entire evidence on record, the learned Subordl nate Judge negatived all the pleas of the judgment-debtor and held all the points against him and dismissed the petition. The judgment-debtor carried the matter it appeal to the District Court, Nellore and an application I. A. No. 132/70 was filed by him for permission to raise an additional ground viz. , that the sale was void for the reason that the execution proceedings were without jurisdiction for want of issue of notice under Order 21 Rule22 C. P. C. The learned District judge allowed the said application and called for a finding from the trial Court. The learned Subordinate Judge submitted a finding as follows -"in the result, I find that under the circumstances of the present case and in view of the application e A. No. 415/59 v/herein the present executive Officer was brought on record in the place of the previous Executive Engineer, who had retired, a special notice under Order 21. Rule 22 c. P. C. is not absolutely essential,"

( 5 ) AFTER the receipt of the aforesaid finding, the learned District Judge rejected all the pleas taken by the Judgment-Debtor but upheld the plea that there was no notice under Order 21 Rule 22 C. P. C. that the omission to give nowtice under Order 21 Rule 22 C P. C. , was not a mere irregularity but an Illegality. In that view he declared the sale as void and allowed the petition E. A. 226/61 to that extent and dismissed in other respects.

( 6 ) IN this appeal it is contended by sri M. Rajasekhara Reddy, learned counisel for the appellant that the view taken1 by the lower appellate Court that the safe was a nullity, is not correct inasmuch as the judgment-debt

Click Here to Read the rest of this document