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Potta Reddi Vs. Karuppa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtChennai
Decided On
Reported inAIR1935Mad150; 155Ind.Cas.1013; (1935)68MLJ48
AppellantPotta Reddi
RespondentKaruppa Goundan and ors.
Cases ReferredRamji Ram v. Ramasre Raut
Excerpt:
.....that the judgment-debtors were estopped by their conduct from raising these objections to the sale proclamation. in the first place the question of estoppel clearly arose for decision and the lower court did not decide it, thereby refusing to exercise a jurisdiction which it was bound to exercise. the estoppel is to my mind in this case perfectly clear. it would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well, but of which the execution-creditor or decree-holder might be perfectly ignorant -that they should take no notice of that, allow the sale to proceed and then come..........parties adjourned to 16th march, 1932. the judgment-debtors in spite of notice took no part in the sale proclamation and came forward objecting to the property being sold in certain lots and other matters of this sort. by a consent order the sale was adjourned to 29th june, 1932. the order on the petition runs as follows:this is not pressed. sale adjourned. objection to sale proclamation given up.2. this order is dated 23rd march, 1932. the sale was again adjourned to 28th september, 1932, and even afterwards adjourned from day to day. an application for adjournment is put in on 5th october, 1932 and refused. the sale was concluded on 10th october, 1932. an application to set aside the sale was put in under order 21, rule 90, in which the objections to the sale application given up on a.....
Judgment:

Pakenham Walsh, J.

1. The decree-holder in the case filed an E.P. No. 63 of 1931 to bring the properties to sale. The sale was posted to 16th December, 1931 and by consent of parties adjourned to 16th March, 1932. The judgment-debtors in spite of notice took no part in the sale proclamation and came forward objecting to the property being sold in certain lots and other matters of this sort. By a consent order the sale was adjourned to 29th June, 1932. The order on the petition runs as follows:

This is not pressed. Sale adjourned. Objection to sale proclamation given up.

2. This order is dated 23rd March, 1932. The sale was again adjourned to 28th September, 1932, and even afterwards adjourned from day to day. An application for adjournment is put in on 5th October, 1932 and refused. The sale was concluded on 10th October, 1932. An application to set aside the sale was put in under Order 21, Rule 90, in which the objections to the sale application given up on a former occasion are repeated. There was a prayer to examine witnesses as to the value of the property or in the alternative, to depute a Commissioner. In the reply to the petition it was distinctly urged that the judgment-debtors were estopped by their conduct from raising these objections to the sale proclamation. The learned Subordinate Judge without giving any decision on the question of estoppel or any reasons for his order simply passed an order as follows:

It is desirable to appoint a Commissioner and one will be appointed. Rs. 75 fees by 3rd March, 1933.

3. Against this order the revision petition has been filed.

4. I think the order cannot be maintained. In the first place the question of estoppel clearly arose for decision and the lower Court did not decide it, thereby refusing to exercise a jurisdiction which it was bound to exercise. The estoppel is to my mind in this case perfectly clear. The judgment-debtors had got an adjournment from 23rd March to 29th June, 1932 by expressly giving up their objections to the sale proclamation. It is immaterial therefore, whether the sale proclamation' is an administrative act as held by this Court or a judicial act as held by some other High Courts; because a party can by his conduct towards another party estop himself from rights which he might have otherwise exercised in Court proceedings. In Arunachalam v. Arunachalam their Lordships say:

It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well, but of which the execution-creditor or decree-holder might be perfectly ignorant - that they should take no notice of that, allow the sale to proceed and then come forward and say the whole proceedings were vitiated. That, in their Lordships opinion, cannot be allowed.

5. Here the case is much stronger. The judgment-debtors have got an adjournment of the sale by giving up their objections to the sale proclamation. Therefore they are estopped from raising those objections again.

6. As to the power of the Court to interfere in revision in such a matter, Ramji Ram v. Ramasre Raut (1924) 83 I.C. 124 is an authority and it was also a case where the lower Court had issued a commission. It was there laid down that the High Court shall interfere in revision under its general powers of superintendence to prevent an inquiry which would not only prolong the litigation unnecessarily but would also lead to a determination of the rights of the parties upon an improper basis. As said above the lower Court has refused to exercise its jurisdiction in deciding the preliminary point raised as to whether the judgment-debtors were estopped from questioning the correctness of the proclamation order. That alone is a clear ground for revision. I am also satisfied that the issue of this Commission is, as in Ramji Ram v. Ramasre Raut (1924) 83 I.C. 124 under the circumstances a waste of public time and money and the order appointing a Commissioner must be set aside. The Court will deal with the petition on its other merits taking into consideration any other ground raised for setting aside the sale. The petitioner will have his costs here and in the lower Court.


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