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Kuppayyan Vs. Ramasami Ayyan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad197
AppellantKuppayyan
RespondentRamasami Ayyan and anr.
Excerpt:
decree - execution--irregular procedure--sale set aside. - .....gamai goundan being the purchaser of two lots and the decree-holder of the other lots. on the 26th march thevana goundan presented a petition to the district court which had ordered the sale, asserting that he had offered the deposit to the amin who refused to receive it, and he prayed that the court would receive his deposit and grant him a receipt.3. no notice of this application was given to the judgment-debtor, but the decree-holder appeared, and the judge on the 28th march set aside the second sale and ordered a re-sale without determining whether the first sale had been duly made. a third sale took place on the 13th june and the property realised only rs. 2,700 : it was purchased by the decree-holder. on the 13th july the appellant presented the present application. he asserted.....
Judgment:

Charles A. Turner, Kt., C.J.

1. In execution of a decree obtained against the appellant, certain immoveable property was offered for sale at auction on the 24th March and knocked down to Thevana Goundan for Rs. 3,550.

2. The Amin, considering that the deposit had not been duly made, re-sold the property in lots on the following day, when it realised only Rs. 2,500, Gamai Goundan being the purchaser of two lots and the decree-holder of the other lots. On the 26th March Thevana Goundan presented a petition to the District Court which had ordered the sale, asserting that he had offered the deposit to the Amin who refused to receive it, and he prayed that the Court would receive his deposit and grant him a receipt.

3. No notice of this application was given to the judgment-debtor, but the decree-holder appeared, and the Judge on the 28th March set aside the second sale and ordered a re-sale without determining whether the first sale had been duly made. A third sale took place on the 13th June and the property realised only Rs. 2,700 : it was purchased by the decree-holder. On the 13th July the appellant presented the present application. He asserted that the first sale was valid and prayed that the third sale should be set aside. Neither the first nor second sale (whichever was valid) should have been set aside without notice to him, nor should the third sale have been ordered without an inquiry whether the deposit had been duly made or Thevana Goundan was liable for any deficiency in the price realised on a re-sale.

4. Although the third sale was duly proclaimed, it is not shown that the appellant was aware that any order had been passed on Thevana Goundan's petition, or that he knew that Thevana Goundan had consented to the order for the third sale.

5. Before the third sale was confirmed and within thirty days of the day on which it was held, the appellant presented his objection, making the decree-holder and Thevana Goundan parties.

6. The order of 28th March in effect set aside whichever of the two sales held theretofore ought to have been affirmed; such an order could not be passed without notice to the appellant. The ground on which he took objection to the confirmation of the third sale appears to us to be valid. The orders of the District Court directing and confirming the third sale are set aside, and the District Court is directed to pass fresh orders on the application which resulted in its order of 28th March. Each party will bear his own costs.


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