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Govinda Menon Vs. Varkey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 957 and 964 of 1966
Judge
Reported inAIR1971Ker8
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 66 and 72(3)
AppellantGovinda Menon
RespondentVarkey and ors.
Appellant Advocate M.K. Narayana Menon and; C.S. Narayanan, Advs.
Respondent Advocate S.A. Nagendran and; P.A. Mohammed, Advs.
DispositionAppeal allowed
Cases ReferredKunjan Raman v. Cheria
Excerpt:
- .....first defendant, under section 47 and order xxi, rule 90, of the code, to set aside an execution sale held pursuant to the execution petition 1075 of 1965, on 10-11-1965. the grounds on which these applications were filed are material irregularity and fraud in publishing and conducting the sale. the execution court allowed these applications. though the appellate court in appeal came to the conclusion that there is no material irregularity or fraud and that there has been no undervaluation it confirmed the setting aside of the sale on the grounds (1) 'that there is absence of sanction to bid' and (2) 'the sale is held without jurisdiction in view of the absence of fresh proclamation and rule 66 notice as contemplated by the decision reported in 1966 ker lt 476.'2. it is conceded that.....
Judgment:

1. These Second Appeals arise from proceedings in execution of the decree in O. S. No. 41 of 1962. The appellants arc the decree-holders and the respondents are defendants 1 to 3. Two applications, E. A. No. 166 of 1965 and E. A. No. 321 of 1966 were moved by the defendants; one by defendants 1 to 3 and the other by the first defendant, under Section 47 and Order XXI, Rule 90, of the Code, to set aside an execution sale held pursuant to the Execution Petition 1075 of 1965, on 10-11-1965. The grounds on which these applications were filed are material irregularity and fraud in publishing and conducting the sale. The Execution Court allowed these applications. Though the Appellate Court in appeal came to the conclusion that there is no material irregularity or fraud and that there has been no undervaluation it confirmed the setting aside of the sale on the grounds (1) 'that there is absence of sanction to bid' and (2) 'the sale is held without jurisdiction in view of the absence of fresh proclamation and Rule 66 notice as contemplated by the decision reported in 1966 Ker LT 476.'

2. It is conceded that if the sale has to be set aside, the applications referred to, filed beyond the period prescribed by Article 127 of the Limitation Act, 1963, are not sustainable. Therefore the argument turned on the question as to whether the sale held on 10-11-1965 is a void sale or not. It was contended by the judgment-debtors that the sale is void whereas the appellants urged that it is a voidable sale and should be set aside.

3. Lack of permission to bid as contemplated by Rule 72 of Order XXI of the Code of Civil Procedure as is clear from Sub-rule (3) thereof cannot make the sale held without sanction, void. That can only be a ground for having the sale set aside.

4. The other grounds urged in support of the contention that the sale is void are that the sale has been held without a proclamation and without notice as contemplated by Rule 66 of Order XXI to the judgment-debtors for settlement of proclamation. On verification of the records we find that there has been a proclamation (pursuant to which the sale was held). On receipt of the Execution Petition, E. P. 1075 of 1965, the Munsiff ordered on the 17th of August that the sale be held on the 10th of November. A proclamation was filed in Court, which no doubt, gives the details of the property as in the proclamation settled earlier after due notice in an earlier application, E. P. No. 1653 of 1963 which was rejected on 18-6-1964, and this proclamation is seen to have been accepted by the Munsiff on the 30th of August, 1965, but without notice to the judgment-debtors. This proclamation gives the date of the sale as the 10th of November, 1965. This is therefore not the very same proclamation which was settled in E. P. No. 1653 of 1963. This proclamation has also been published as required by Rule 67 of Order XXI on the 1st of September, 1965. It is thereafter that the sale took place on the 10th of November, 1965. It is therefore clear that there has been a proclamation. But it is also clearthat no notice was issued regarding the settlement of this proclamation. The question then is whether lack of notice under Rule 66 of Order XXI to the judgment-debtors before settlement of the proclamation would make the sale that followed on such a proclamation void. This has been answered in the negative by two decisions of this Court, in Kuttikrishnan Nair v. Madbavan Nair, 1959 Ker LJ 213 - (AIR 1959 Ker 382) and in Kunjan Raman v. Cheria, (1960) 1 Ker LR 315, This was also the view 06 the Madras High Court in the earlier decisions referred to in 1959 Ker LJ 213 = (AIR 1959 Ker 382) but there are two later decisions of the Madras High Court which took a different view. The later view of the Madras High Court has not been accepted by this Court in 1959 Ker LJ 213 = (AIR 1959 Ker 382). We sec no reason to differ from the views taken in the decisions in 1959 Ker LT 213 = (AIR 1959 Ker 382) and in (1960) 1 Ker LR 315. We therefore hold that the sale is not void, that it has to be set aside in appropriate proceedings on application, that Article 127 of the Limitation Act would apply to such applications, that applications E. As. 166 and 321 of 1966 having been filed beyond the period provided by that Article are barred by limitation and are not sustainable. We therefore set aside the orders of the courts below, allow these appeals and dismiss the application for setting aside the sale. We make no order as to costs.


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