Ratio-Jurisdiction to proceed with execution.

Venkataraman, J.- These two appeals are against a common order dated 14th November, 1966 of the learned Subordinate Judge of The Nilgiris, in proceedings in execution of the decree in O.S.No. 167 of 1955. The respondent-firm, Chandmull Amarchand, obtained a decree on 7th November, 1956 in O.S. No. 167 of 1955 on a number of promissory notes executed jointly by J.M. Thippa Gowder, K. Petha Maistry and B. Gujja Gowder. The claim was barred against Petha Maistry and he died before the suit. Thippa Gowder also died before the suit. The suit was filed against one J.T. Joghee, the, son of J.M. Thippa Gowder, in his capacity as manager of the joint family. Joghee was impleaded as the first defendant and Gujja Gowder as the second defendant. The decree was against B. Gujja Gowder personally and against the assets of J.M. Thippa Gowder in the hands of J.T. Joghee and the joint family. The decree was for Rs. 21,000 odd. E.P.No. 113 of 1960 was filed on 12th October, 1959 for impleading the legal representatives of Gujja Gowder. The petition was dismissed on 14th June, 1960. Then E.P.No. 763 of 1961 was filed on 5th October, 1961 and dismissed on 31st August, 1962 in view of E.P.No. 494 of 1962 which was filed on that day. In E.P. No. 494 of 1962 certain properties of the joint family of Joghee Gowder, his younger brother Natarajan and their mother Keppiammal, were sold on 29th October, 1962,and were purchased by the decree-holder, for Rs. 10,000. No petition was filed to set aside the sale and the sale was confirmed on 1st December, 1962. Since the decree was not fully satisfied, the decree-holder filed E.P. No. 721 of 1964. Natarajan and Keppiammal filed an application on 18th February, 1965, E.A.No. 76 of 1965, under section 47 and 151 of the Civil Procedure Code to dismiss E.P.No. 721 of 1964. They filed E.A.No. 109 of 1965 on 19th March, 1965, under sections 47 and 151 Civil Procedure Code to set aside the sale held on 29th October, 1962. These applications were dismissed by a common order dated 14th November, 1966. A.A.O. No. 95 of 1967 is against the order dismissing E.A.No. 109 of 1965 and A.A. O.No. 117 of 1967 is the appeal against the order dismissing E.A.No. 76 of 1965. The appeals have been heard together.

2. The grounds taken in E. A.Nos. 76 and 109 of 1965 are common and are two-fold: (1) No notice was given to the appellants Natarajan and Keppiammal, though the respondent (decree-holder) knew that J.T. Joghee was not the joint family manager and was living apart from the appellants and was inimical towards them. There was collusion between Joghee and the decree-holder, (iii) The deceased Thippa Gowder led a reckless and immoral life and the debts which resulted in the decree were tainted by immorality.

3. The learned Judge repelled these contentions on a careful analysis of the evidence adduced before him. He found that Joghee was the manager of the joint family and that the debts were not tainted by immorality. He also found that there was no collusion. Mr. R. Desikan and Mr. P. Bhaskaran, the learned Counsel who appeared for the appellants before us, were not able to urge anything to show that the reasoning of the learned Subordinate Judge was wrong on these aspects. There is, however, one other aspect on which they are entitled to succeed. We shall confine ourselves for the present to the sale held on 29th October, 1962 in E.P.No. 494 of 1962. It will be noted that one of the contentions is that no notice of the execution was ever given to them. The reply of the decree-holder is that notice went to the joint family-manager, J.T. Joghee, and that that was sufficient. If, in truth, notice had been properly served on J.T. Joghee, the reply of the the decree-holder would be a sufficient answer to the contention of the appellants. But we find that that is not so. Taking up the first execution petition, E.P. No. 113 of 1960, it was filed for attachment and sale of the immovable properties in the hands of the legal representati

Click Here to Read the rest of this document