T.K. Joseph, J.
1. Kuttikrishnan Nair the appellant in both the cases is the plaintiff in O. S. No. 40 of 1951 and the 3rd defendant-petitioner in Small cause suit No. 367 of 1940 of the District Munsiff's Court of Palghat. A: S. No. 441 is from the decree dismissing O. S. No. 40 of 1951 and A. S. No. 414 is froth the order dismissing an application to set aside an order in execution of the small cause-decree declaring the appellant ex parte. The two appeals were heard together.
2. The facts necessary for the decision of the two anneals may be briefly stated. The appellant and Defendants 3 to 22 in O. S. No. 40 of 1951 are members of an undivided Marumakkathayam tarwad of which the appellant is the senior-most male member. One Padmanabhan Nair, a former karnavan of this tarwad had mortgaged with possession the properties described as items 1 to 16 in the plaint schedule as well as the mortgage right in four other items of immoveable property to one Kesavan Nair for a sum of Its. 4000. Ext. A2 dated 14-4-1922 is the deed of mortgage. The properties were leased back to the tarwad under Ext. A3 of the same date.
During the continuance of the mortgage, the mortgage right which the tarwad had in the 4 items, referred to above was redeemed and a sum of Rs. 1400/- was received by Kesavan Nair as mortgage money, so that the balance due under Ext, A2 was Rs. 2600. At the time of Exts. A2 and A3 the plaintiff and his younger brother Atchuthan Nair who is the 5th respondent in A. S. No. 441 were in Malaya. On 11-4-1923 Padmanabhan Nair and the plaintiff executed a puramkadam Ext. A4 for Rs. 3500 in favour of Kesavan Nair and the latter executed a lease back Ext. A5 on the same day. Padmanabhan Nair relinquished management of the tarwad in 1923 and the plaintiff thus became the karnavan and Manager. The plaintiff again left for Malaya and came back in 1926 when he stayed here-for a short while, He again went to Malaya in 1927' and returned only in May 1951.
In the meanwhile the mortgagee had assigned his rights to the 1st defendant. In 1940 the 2nd defendant who is the 1st defendant's wife instituted a suit' as Small Cause suit No. 106 of 1940 in the Munsiffs Court of Ottapalam against all the members in the tarward including the plaintiff on the basis of a promissory note executed on 28-4-1957 by defendants 3 and 4, 'the plaintiffs mother and sister, for recovery of a sum of Rs. 221-14-7. The suit was later transferred to the Munsiff's Court, Phalghat where it was numbered as Small Cause suit No. 367 of 1940. A decree was passed ex parte in that case and in execution, the 2nd defendant purchased the equity of redemption of all the 16 items covered by the mortgage and puramkadom. The 1st defendant then surrendered his mortgage right to the 2nd defendant.
According to the appellant, the promissory note sued on and the decree obtained thereon are not binding on the tarwad. The 3rd defendant was not competent to bind the tarwad as the plaintiff was the karnavan at that time. He was not impleaded as the karnavan in the suit. The appellant however did not seek for cancellation of the decree as execution of the same had become barred by limitation on the date of the suit. The sale in execution of the decree was sought to be set aside on the ground that no notice was served On the appellant who was the karnavan of the tarwad. Treating the execution sale as a nullity !the appellants sued in O. S. No. 40 for redemption of the mortgage after scaling down the mortgage debt under the Madras Agriculturist's Relief Act. The 2nd defendant contested the suit
Her main contentions were that the mortgage was not subsisting as she had obtained the equity of redemption in execution of, the small cause decree and had taken a release of the mortgage right, that the execution sale was valid, that the tarwad was properly represented in the suit and in execution proceedings, that 'the plaintiff and the tarwad were estopped from contending that the 3rd defendant was not 'the Karanavathi at the time of execution of the promissory note and the institution of the suit and the execution proceedings, that the suit was not maintainable, that even' if the plaintiff was aggrieved his remedy was to be sought in execution and not by way of fresh suit and that the suit was barred by limitation. The trial court upheld the defence contentions and dismissed the suit. A. S. No. 441 is filed from this decree.
3. It has already been stated 'that the appellant was declared ex parte in 'the execution proceedings in the Small Cause suit. He filed an application No. 514 of 1951 for setting aside this order on the ground that he was not duly served in execution and that he came to know of the order, the attachment and sale of the properties only on 10-6-1951. The decree-holder resisted the application contending that the service of notice was proper, that the application was barred by limitation and that the same was not maintainable under Order 21 Rule 105 (Madras) of the Civil Procedure Code, The appellant's application was dismissed and ho filed A. S. No. 185 of 1954 in the Subordinate Judge's Court, Ottapalam against this order.
That appeal was transferred to this court to be heard along with A. S. No. 441 of 1954. The only point for decision is whether the execution sale by which the equity of redemption was sold is valid. According to the plaintiff the sale is null and void and the grounds relied on by him are that he was the karanavan of the tarwad at the relevant time, that he was not impleuded as such in the suit and that notice for settlement proclamation was not served on him. The defence is that the plaintiff's mother was the dc facto karanavathi of the tarwad, that the plaintiff is not entitled to question the decree, that the notice regarding the settlement or proclamation was duly served, that even if it was not served the same could not render the sale null and void and that the suit was not maintainable.
4. The decision of the case mainly rests on a question of fact viz., whether the plaintiff was the karnavan of the tarwad at the time of the execution of the promissory note and the institution of the' suit and execution proceedings. The plaintiff left for Malaya in 1919 'when Padmanabhan Nair was the Karanavan of the tarwad. He came back to India in 1923 when Padmanabhan Nair relinquished management under a registered deed, Ext. A6 dated 24-11-1923. The plaintiff who was the next senior male member thus became entitled to manage the tarwad. However he again left after a short while and was in Malaya till he returned in 1926. During his second visit he stayed here for about 10 months and went back jn 1927. Thereafter he was in Malaya for 24 years till he returned in May 1951.
His younger brother Atchuthan Nair was also in Malaya and there were no other adult male members in the tarwad. The defence case is that the 3rd defendant thus became the de facto Karanavathi of the tarwad. The question whether the seniormost member becomes do facto Karnavan or Karanavathi during the absence of the Karnavan depends on the facts of each case and it is not possible to lay down any hard and fast rule regarding the same. So far as this case is concerned it is not as though the plaintiff left the tarwad temporarily. He left India and was not available for management of the tarwad. The plaintiff has a case that he executed a power of attorney in favour of his step-father to manage the tarwad during his absence but no attempt was made to substantiate this. His absence is not similar to that of a karnavan who is unable to reside at the tarwad house on account of his profession or similar reasons but is still available to carry on management.
The circumstances of this case are such as to warrant the conclusion that the long absence of the plaintiff from India amounted to abandonment of Karnavanship. From 1927 to 1951 he was away and be had not made any arrangement for the management of the tarwad till his return which itself was uncertain. There was no other adult male member and the 3rd defendant was therefore Justified in taking up management. The evidence in the case which will be referred to shortly shows that the members of the tarwad as well as strangers treated her as the Manager of the tarwad during the last period of absence of the appellant.
5. The documentary evidence in the case-supports the defence case. Ext. A9 is copy of the-plaint in the small cause suit in which plaintiffs-mother was implcaded as the karnavathi. No member of the tarwad disputed this. The plaintiff was no doubt in Malaya at the time exit there is evidence in the case to show that summons was served on him in Malaya. Ext. B36 is the acknowledgment of the summons sent to the plaintiff by post. This no doubt was produced after the plaintiff was-examined but the late production was not due to-the fault of the 2nd defendant. The 2nd defendant applied for copies of the relevant records in the small cause suit but the application was dismissed on the ground that records had been destroyed and it was only later that Ext. B36 was discovered. It is significant, in this connection to note that the plaintiff had no case in the plaint that summons was not served on him.
We have therefore no hesitation in holding that Ext. B36 was signed by the plaintiff. This means- that he received a copy of the plaint in which his-mother was described as the Karnavathi. He did not choose to dispute this allegation in the plaint-It is thus seen that all the members of the tarwad accepted the position that the 3rd defendant was-the Karnavathi at the time of the institution of the suit. Exts. B7, B8 All, BI1 and B5 show that between the years 1935 and 1948, the 3rd defendant was dealing with tarwad properties in the course of management of the tarwad. Ext. B32 dated 13-11-1947 is- an important' document. It is a deed of surrender by which Achuthan Nair surrendered his special rights in certain properties to the 3rd defendant so that she may hold the properties on behalf' of the tarwad. Ext. 135 dated 13-6-1948 is a theettu from the Zamorin of Kozlrikode to the 3rd defendant wherein she is described as the Karnavathi of the tarwad. These properties were originally demised to the tarwad in the joint names of the plaintiff and his mother in September 1927.
The documents referred to above show that members of the tarwad as well as strangers treated the 3rd defendant as the Karnavathi of the tarwad during the absence of the plaintiff from India. The plaintiff no doubt relies on Exts. A6, A7 and A8 to show that he was dealing with tarwad properties. Of these, Exts. A6 and A8 relate to transactions during his first return from Malaya and A7, when he was here in 1927. Thereafter there is no transaction in respect of the tarwad in which he has taken part. This is not a case in which the 3rd defendant has been merely taking the income of the tarwad' properties Or paying the tax thereon. She was recognised as the person in management for all' purposes. This coupled with the fact that the plaintiff was at that time outside India leads to the conclusion that the 3rd defendant was the Karnavathi of the tarwad at the time of the suit and execution proceedings. The plaintiff has no case that summons and notice in execution were not served on the 3rd defendant. In fact the 3rd defendant appears to have appeared in execution proceedings and raised objections. Thus if is seen that the execution proceedings were conducted with notice to the Karnavathi of the tarwad.
6. In view of the finding recorded above the question whether the plaintiff was served with notice in execution and if he was not, whether the sale is void does 'not really arise Even assuming that notice of settlement of proclamation was not served on 'the plaintiff such omission cannot render the execution sale void. Neelu Nethiar v. Subramania Muthan, AIR 1920 Mad 481; Periyannan Kaladi V. Ramaswami Pallavarayan, AIR 1945 Mad 499; Seshagiri Aiyar v. Valambal Ammal, AIR 1952 Mad 377, are decisions which lay down that such omission to serve notice, under Order 21, Rule 66 of the Code of Civil Procedure does not render the sale illegal or void. The distinction between notice under Rules 22 and 66 of the Code is pointed out in the decisions cited above. Unlike notice under Rule 22 which forms the foundation of jurisdiction, omission 'to effect proper service of the notice under Order 21 Rule 66 amounts only to an irregularity. Learned counsel for the appellant relied on the decisions in Venkatswara Ettu Naicker v. Ayyammal, AIR 1950 Mad 367 and Jagannath v. Perumal Naidu, AIR 1955 Mad 233. The former was the case of an application to set aside the sale under Section 47 and Order 21, Rule 90 of the Code. It was held that the proclamation was not conducted at all and the sale was set aside' This is not an authority applicable to the facts of this case as the question here is whether failure to serve notice of proclamation would render the sale void. There is an observation in the latter case supporting the stand taken by the appellant but it has to be observed 'that the earlier decisions of the Madras High Court were not brought to their Lordships' notice. We prefer to follow the decision in AIR 1920 Mad 481 and the later decisions following the same. In this view it is unnecessary to decide whether the substituted service resorted to in execution was proper.
7. There is yet another aspect to be considered in this connection. The plaintiff who impugns the execution sale was a party to the decree and as such his remedy is to apply in execution and not by way of a separate suit. This has been laid down by the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87. This is not a case in which the suit can be treated as a petition under Section 47. As pointed out by the Supreme Court, such a petition has to he filed within three years of the date of the sale. Besides the suit must be one instituted in the proper court. The execution sale here was conducted by the Munsiffs Court while the plaint is filed in the Subordinate Judge's Court. The plaint cannot therefore be treated as a petition under Section 47. C. P. C.
8. It follows that the equity of redemption was properly and validly sold in execution of the small cause decree and that the plaintiff is not entitled to any relief. The decree dismissing the suit must therefore be confirmed.
9. A. S. No. 414 of 1957 may now be considered. This is the appeal from the order dismissing an application of the 3rd defendant under Order 21. Rule 105 (Madras) of the Code of Civil Procedure. The appellant who was 3rd defendant in Small Cause suit No. 367 of 1940 was declared ex parte during the course of the execution proceedings in Small' Cause suit No. 367 of 1940 of the District Munsiffs Court of Palghat. In the application filed on 2-7-1951 the appellant stated that he returned from Malaya towards the end of May 1951 and that ho came to know of the order declaring him ex parte as well as the later execution proceedings only on JO-6-1951. The court below found that substituted service of notice effected on the appellant was proper, that the application was not maintainable under rule 105 as there was no pending proceedings at that time and that the application was barred by limitation. The application was accordingly dismissed and he has preferred this appeal.
10. The appellant is bound to fail on the question of limitation, unless he succeeds in showing that he came to know of the order only on 10-6-1951. His deposition in O. S. 40 of 1951 was produced in this enquiry and he has admitted therein that he saw the proclamation schedule towards the end of May 1951 and that he handed over the same to his counsel by the end of May. In view of this admission it is idle to contend that he came to know of the execution proceedings only on 10-6-1951. Soon after the sale and delivery in execution, his mother went over to Malaya and stayed with him. It is difficult to believe that he did not learn the details from her at that time. The learned Munsiff has referred to several other circumstances indicating that the appellant must have had knowledge of the execution proceedings earlier than the date mentioned by him. In any view of the case, as he came to know of the execution proceedings in May 1951, the application filed on 2-7-1951 is clearly barred by limitation. It is therefore unnecessary to consider the other points found against him by the learned Munsiff. The application dated 2-7-1951 was rightly dismissed by the court below.
11. At the close of the hearing, Shri Sundara lyer, learned counsel for the appellant submitted that at least the tarwad house may be made available to the appellant's tarwad. Shri Gopalan Nambiar the learned counsel for the 2nd defendant respondent made a generous offer that if compensation for the improvements made by the 2nd defendant and her predecessor since the date of the firs6 mortgage is paid, item No. 1 and the building therein may be surrendered to the appellant's tarwad. The appellant was willing to accept this offer if lie was not entitled to any relief on the merits. In view of our conclusion that both the appeals must be dismissed we consider it proper to incorporate a direction in the decree implementing this offer and acceptance.
12. In the result, in modification of the decree in O. S. No. 40 of 1951 we direct that in case the appellant deposits in court compensation for improvements effected by the 2nd defendant and her predecessors in item No. 1 after 14-4-1922, as determined by the trial court hereafter a decree for recovery of item No. 1 in the plaint schedule and the improvements therein including the buildings will be passed by the trial court, and this will be treated as a preliminary decree in that behalf. The plaintiff will make the necessary application in this behalf within one month of receipt of the records in the court below and pay the amount within such time as will be fixed by the court. Subject to this direction A. S. 441 of 1951 is dismissed. A. S. No. 414 of 1957 is also dismissed. The appellant will pay the costs of the 2nd respondent in both the appeals.