Failure to provide notice in execution proceedings invalidates the sale of property under the amended decree.

1. This miscellaneous appeal is directed against the appellate order dated 9th December 1954 of the Subordinate Judge, Gudivada, in A.S. No.20/54 by which he reversed the order of the District Munsif, Gudivada setting aside the sale of the plaint B scheduled property in execution of the decree passed in O.S. No.234 of 1947.

2. The respondent was the plaintiff in O.S. No.234 of 1947 the object of which was to secure possession of the demised land as detailed in A schedule and recover Kattubadi amounting to 36 bags of paddy of the value of Rs.381-14-9 for the Fasli 1356. There was a prayer also for future profits at the same rate till delivery of possession. These reliefs were sought against Chaprala Sobhanadri who was the first defendant in the suit of whom no more notice is required to be taken since he is not a party to this appeal. The appellant who was the 2nd defendant in the suit, had to answer to the plaintiff - respondent for the security which he had offered for the due payment of the kattubadi for Fasli 1356. In order to discharge his liability as a guarantor, he deposited Rs.360/- during the pendency of the suit and most probably that was the reason that no charge was created on B schedule property in the decree that followed.

3. As ill luck would have it, the respondent, who had secured the decree, filed I. A. No.24/51 and in terms of the prayer therein the decree was amended on 8-1-51 without notice to the appellant. Accordingly a further clause was added to the decree "that B scheduled property shall stand charged for the amount due." The result was that the B schedule land became liable not only for the kattubadi for Fasli 1356 but also for subsequent profits accrued due up to 1360 F.

4. Having unilaterally obtained the above amendment the respondent presented E.P. 107/51 on 10/03/1951 praying only for delivery of possession. That E.P. was however dismissed for nonpayment of batta on 26-4-51. In the next month he filed the second E.P.147/51 on 1-5-51 for the same relief. This time notices were issued to the principal judgment - debtor and the appellant but it was returned unserved as they were said to have refused to accept the notices. The Executing Court ordered delivery of the demised land but as the respondent eventually failed to deposit batta, the E.P. was dismissed on 4-9-51.

5. The respondent then came forward with his E.P.340/51 on 15-10-51 for delivery of possession of A. scheduled property and for Sale of B scheduled property for arrears of profits which had fallen due for 1356 F. to 1360 F. On this petition delivery was ordered without notice to the judgment - debtors and delivery was recorded after it was effected. The E.P. was however dismissed on 7-7-52 on the ground that the sale proclamation for B scheduled property could not be effected due to the respondent not being present to point out the property. The order of dismissal was challenged in A.S. No.126/52 in the result of which E.P. came back to the Executing Court to be disposed of according to law. Ultimately the B scheduled property was sold on 19-1-53 for Rs.2010/- and purchased by the respondent.

6. The appellant in his E.A.181/53 raised the following objection and pleas :
(1) No notice was given to him of the execution proceedings;
(2) the property being liable under the security bond for Fasli 1356 Kattubadi, it could not be sold for the entire decree amount and even that without effecting fresh attachment;
(3) there was material irregularity in the conduct of sale as there was no proper publication of sale proclamation in the village;
(4) the decree sought to be executed was inexecutable since it amounted to a preliminary decree;
(5) substantial injury has resulted to