Amendment of Act, 1873 retrospective.

RAMACHANDRA IYER, C.J. :- This appeal which concerns a question relating to the extent of properties sold in an execution sale, has been directed to be posted before a Full Bench in view of a contention that the decision in Parathasarathi Naidu in re 1957-2 Mad LJ 250 : (AIR 1958 Mad 94) required reconsideration. Before proceeding to deal with that point, we shall set out the facts which have given rise to this appeal.

2. Within the limits of the Karaikudi Municipality, certain number of persons (about 80 in number) owned in common a large extent of land consisting of about 37 items. Disputes arose between the co-sharers regarding the partition of the properties. That was sometime prior to the year 1952. The matter was taken up by means of a suit for partition in the Sub-Court, Devakottai. While the litigation was pending, default was made in the payment of the property tax that fell due for the property to the municipality. The municipality thereupon instituted O. S. No. 16 of 1952 in the Sub-Court, Devakottai, for recovery of a sum of Rs. 5565-1-6 and prayed for a charge over the 37 items, of the properties for realisation of the decree amount. One of the items in respect of which charge was claimed was T. S. 154, of an extent of 17 acres and 11412 sq. ft. By his judgment dated 8-10-1953, the Subordinate Judge granted a decree in terms of the prayer contained in the plaint, unfortunately a mistake crept in the schedule to the decree while drafting. T. S. 154 whose actual extent is 17 acres and 11412 sq. ft. was shown as having an area of only 11412 sq. ft. That mistake was clerical and arose by wrongly shifting the number 17, which represented the extent of the property in acres, to the preceding column which gave certain survey numbers as forming the western boundary.

But this mistake was, however, never rectified. Execution proceedings were then initiated by the municipality and one item of the charged properties was brought up for sale. That item was described as the extent of 11412 sq. ft. in T. S. No. 154. That only that extent out of the entire area covered by T. S. 154 was put up for sale is made clear by the various orders that were passed on the execution petition from time to time. For example, the note made by the office for describing the property which was to be proclaimed and sold, said,

"For sale of the immovable property T. S. 154 in Karaikudi Municipality one house site measuring 11412 sq. ft."

The value given by the decree-holder and also fixed by the Court at the time of settling the sale proclamation, was in conformity with the extent of the property being 11412 sq. ft. So much is conceded. In the sale that took place on 13-6-1955, the respondent became the purchaser for Rs. 7258. That this price is appropriate and could be considered proper only if the property sold is taken to be 11412 sq. ft. has been recognised by both the Courts below and indeed is not a matter of any doubt. The learned District Judge has stated that 17 acres and 11412 sq. ft. would be worth several lakhs of rupees. The sale was duly confirmed and the sale certificate which was issued, while describing the property sold stated :

"Situate in Kalanivasal second ward in the Sub-District of Karaikudi in the registration district of Pudukottai and lying to south of T. S. 130 to 135, 138, 140 to 152, west of the new Road of Kalanivasal and north of T. S. 160 to 162 and Muthupattinam Annamalai Chettiar Street, east of Paruppa Corani and Kanadukanathan road, within these the vacant site bearing T. S. 154, measuring 11412 sq. ft. and belonging to the samudayam of the defendant. The auction purchase price is Rs. 7526."

This description emboldened the auction-purchaser (respondent to the appeal) to make a claim for the entire area of 17 acres and 11412 sq. ft. comprised in T. S. 154 and he applied to the Court on 5-12-1956 claiming possession of that extent. His application was resisted by the appellants (the judgment-debtors) on the ground