Back
MADRAS HIGH COURT
SATYANARAYANA RAO,RAGHAVA RAO
Seshagiri Aiyar
Versus
Valambal Ammal and others
Letters Patent Appeals Nos. 64 and 106 of 1949
Decided On : 18January, 1951
EXECUTION PROCEEDINGS - SALE - IRREGULARITY - NOTICE - LIMITATION - SUBSTANTIAL INJURY - CIVIL PROCEDURE CODE (ACT V OF 1908), ORDER XXI, RULES 66, 67, 69, 90, 166 - LIMITATION ACT (IX OF 1908), ARTS. 165, 181.
Fact of the Case:
The appellant, an auction-purchaser, challenged the decision of the lower court, which set aside the sale of properties in execution proceedings on the ground that the fourth defendant, a puisne mortgagee, was not given notice of the revival of the execution petition and that there was no fresh proclamation of sale.
Finding of the Court:
1. The application for setting aside the sale was barred by limitation under Article 166 of the Limitation Act, as it was filed more than 30 days from the date of the sale. 2. The want of notice to the fourth defendant at the time of reviving the previous execution petition was an irregularity in publishing or conducting the sale and therefore fell under Order XXI, Rule 90, Civil Procedure Code. 3. The sale was not illegal as the non-compliance with the requirement of notice under Order XXI, Rule 66(2), Civil Procedure Code, was only an irregularity and not a fundamental jurisdiction defect. 4. The failure of the court to settle a fresh sale proclamation on the later execution petition was also an irregularity as the requirement of a fresh proclamation under Rule 67 referred only to its publication in the manner prescribed by Rule 54(2). 5. The fourth defendant failed to establish that she suffered substantial injury by reason of the alleged irregularities.
Issues: 1. Whether the application for setting aside the sale was barred by limitation? 2. Whether the want of notice to the fourth defendant at the time of reviving the previous execution petition was an irregularity in publishing or conducting the sale? 3. Whether the sale was illegal due to non-compliance with the requirement of notice under Order XXI, Rule 66(2), Civil Procedure Code? 4. Whether the failure of the court to settle a fresh sale proclamation on the later execution petition was an irregularity? 5. Whether the fourth defendant established that she suffered substantial injury by reason of the alleged irregularities?
Ratio Decidendi: 1. The application for setting aside the sale was barred by limitation under Article 166 of the Limitation Act, as it was filed more than 30 days from the date of the sale. 2. The want of notice to the fourth defendant at the time of reviving the previous execution petition was an irregularity in publishing or conducting the sale and therefore fell under Order XXI, Rule 90, Civil Procedure Code. 3. The sale was not illegal as the non-compliance with the requirement of notice under Order XXI, Rule 66(2), Civil Procedure Code, was only an irregularity and not a fundamental jurisdiction defect. 4. The failure of the court to settle a fresh sale proclamation on the later execution petition was also an irregularity as the requirement of a fresh proclamation under Rule 67 referred only to its publication in the manner prescribed by Rule 54(2). 5. The fourth defendant failed to establish that she suffered substantial injury by reason of the alleged irregularities.
Final Decision: The Letters Patent Appeal was allowed, and the decision of the lower court was restored with costs throughout.
SATYANARAYANA RAO, J. :- This Letters Patent Appeal is against the decision of Panchapakesa Aiyar, J., in C. M. S. A. No. 17 of 1948. The matter arises out of execution proceedings in pursuance of the mortgage decree in O.S. No. 512 of 1936, District Munsif Court, Kulitalai and the appellant in the appeal is the auction-purchaser in those execution proceedings.
2. One Muthurathnam Iyer filed O. S. No. 512 of 1936, District Munsifs Court, Kulitalai to enforce the security bond dated the 28th May 1928 executed by defendants 1 and 2 in favour of the members of a chit fund. The security was created on three items of property. Item 1 is a wet land bearing S. No. 188/2 of the extent of 1 acre 60 cents. Item 2 is a wet land bearing S. No. 299/1 of the extent of 84 cents and item 3 is dry land bearing S. No. 222/4 and measuring 4 acres 93 cents. The fourth defendant was impleaded in the suit as she claimed to be a puisne mortgagee over items 1 and 2 under a mortgage deed dated the 14th September 1931. It is claimed that the mortgage is a usufructuary mortgage. The fifth defendant was also a puisne mortgagee and was therefore impleaded in the suit. The mortgagee obtained a mortgage decree in the suit on the 19th March 1937 for Rs. 2394. A final decree was passed on the 16th August, 1937. The decree-holder filed the first execution petition 579 of 1937 on the 6th September 1937, for the sale of the property and the sale was ordered. On 15th April, 1939, the decree was scaled down to Rs. 1951-6-9 under Madras Act IV (4) of 1938 at the instance of the first defendant. On 1st May 1940 sale was ordered for the amended amount and costs in E. P. No. 325 of 1939, but the sale was stayed under Madras Act IV (4) of 1938. On 20th February 1941 the decree-holder filed E. P. No. 197 of 1941. but this time the first defendant obtained stay under the Madras Debt Conciliation Act. On 30th January 1942 the decree-holder filed E. P. No. 201 of 1942 and in that execution petition notice was taken to the fourth defendant and she was served by affixture. The fourth defendant did not appear and did not contest the execution. The sale was thereafter fixed to 20th January 1943 and the sale proclamation was also settled by the Court fixing the upset price of the three items of property on the basis of the valuation made by the Amin. For the three items Rs. 1500, 700 and Rs. 500 respectively were fixed as upset price. The sale was again postponed but this time at the instance of defendants 4 and 5 who filed an application under S. 20 of Madras Act IV (4) of 1938. The application was filed on 19th January 1943 and the sale was stayed on 19th February 1943. The order passed on the execution petition on that date was :
"Execution stayed and sale is stopped. Petition closed."
Thereafter, defendants 4 and 5 filed I. A. No. S76 of 1943 under S. 19 of Madras Act IV (4) of 1938 to again scale down the decree . But on that petition the decree was scaled down only to the same amount as before. Against this order there was an appeal by the 4th defendant in A. S. No. 239 of 1944 to the District Court, Trichinopolv. which was finally disposed of in 1945 confirming the order of the lower Court. On 26th July, 1944, the decree-holder filed E P. No. 277 of 1944 to revive E. P. No. 201 of 1942, to settle the sale proclamation without notice to the defendants to sell the properties under O. XXI (21), Rr. 66 and 72, Civil Procedure Code. The order on that petition was "allowed, proclaim and sell" and is dated 27th September 1944. Thereafter the sale was duly proclaimed and lots 1 and 2 were sold on the 27th September 1944 for Rs. 1501 and 701 respectively. On 28th October 1944 the sale was confirmed. The trouble of the decree-holder did not, however, end with this confirmation of sale.
3. On the 18th November 1944 the fourth defendant filed E. A. No. 760 of 1944 and E. A. No. 793 of 1944 to set aside the sale and to excuse the delay in filing E. A No. 760. E. A. No. 760 wa
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
