Application for setting aside execution sale on the ground of fraud of decree holder.

This Civil Miscellaneous Second Appeal arises out of a petition filed by defendants 7 and 10 in O.S. No. 355 of 1939 on the file of the District Munsif’s Court Negapatam, to set aside a Court sale held on 23rd November 1042 and confirmed on 29th December, 1942. Both the lower Courts have dismissed the petition. Hence this appeal.

The Municipal Council, Negapatam, the first respondent herein obtained the aforesaid decree for recovery of Rs. 18-1-6 being the arrears of property tax for T. S. No. 155. The decree also gave a first charge over the property The property originally belonged to one Vanjoor Ammal. Defendants 2 to 10 were impleaded as her heirs and as persons in possession and enjoyment. The eleventh defendant was impleaded as he claimed some interest in the property. An ex parte decree was passed in the first instance on 19th April, 1940. Defendants 7 to 10 were described as minors represented by guardian, the second defendant. They were, however, majors at the time of the institution of the suit. During the pendency of the suit it appears that the seventh defendant was declared a major and the cause title amended accordingly. In execution of this ex parte decree, E.P. No 410 of 1941 was filed on 6th October, 1941, for sale of the property after settlement of proclamation. The sale notice Exhibit D-1(a) sets out in the cause title defendants 7 to 10 as minors and notice seems to have been served by affixture on the outer door of the house of the second defendant. The property was finally sold and purchased by the second defendant for Rs. 505. On a petition by the tenth defendant, LA. No. 584 of 1943, dated 15th July, 1943, to set aside the ex parte decree, the decree was so set aside on 6th March, 1944. The seventh defendant also filed a petition in LA. No. 245 of 1944, on 23rd March, 1944. He alleged that he became aware of the decree and the Court sale only on 9th March 1044. It was his case that the decree itself was obtained fraudulently at the instance of one Jabbar Maracair, a Municipal Councillor of Negapatam, living in a house of his own very near the suit house; and that it was at his instigation and by his machinations, the Municipal Council was made to file the suit and it was for his benefit and benami for him that the second respondent purchased in Court auction It was further alleged that the sixth defendant had died even before the suit and that defendants 7 to 10 who were all majors were purposely described as minors and the suit summons was got served by affixture on the outer door of the house of the second defendant as guardian for the minors. The entire decree and the sale thereunder are stated to be designedly fraudulent.

The Court finally passed an order on 2nd April, 1945, setting aside the ex parte decree against all the defendants. Along with this petition to set aside the ex parte decree the seventh and tenth defendants filed the present petition to set aside the sale under section 47 of the Civil Procedure Code. The sale was claimed to be illegal and void; its validity was attacked on various grounds:

(1) The decree itself was a void decree, as defendants 7 to 10 who were majors were treated as minors and there was no service of summons even on the guardian;

(2) The sale was illegal as even the notice of sale under Order 21, rule 66 of the Code was served by affixture treating defendants 7 to 10 as minors though they were majors all the time; and they were not served either;

(3) the purchase by the second respondent was really benami for Jabbar Maracair who was responsible for the fraud;

(4) The sale was for a very low price, the property being worth not less than Rs.2,000;

(5) the legal representatives of the 8th defendant who had died were not brought on record and one Azeez who was one of the heirs was not impleaded at all.

It was claimed that the petition was in time under Article 181 of the Indian Limitation Act.

The petition was contested by both the decree-holder and the auction purcha