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Manthiri Goundan Vs. Arunachalam Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad569; (1940)1MLJ711
AppellantManthiri Goundan
RespondentArunachalam Goundan and anr.
Cases Referred and Venkataramanayya v. Bangarayya
Excerpt:
- - 10,000 his interests are clearly affected by such a sale......order dismissing the application of the appellant to restore to file the petition to set aside a sale presented by him which had been dismissed for default; and the other is an appeal from the order dismissing the petition to set aside the sale. the appellant who was the first defendant in o.s. no. 18 of 1934 had been adjudicated an insolvent and the application, was made by him to set aside the sale on various grounds. that application was dismissed for default on the 9th december, 1937. an application to restore the petition to file was made on the next day and that also was dismissed. as a result we have two appeals from the two orders which were passed against the appellant. so far as the application made on the 10th december, 1937, to restore the petition to file is concerned it.....
Judgment:

Pandrang Row, J.

1. These appeals are connected. One is from an order dismissing the application of the appellant to restore to file the petition to set aside a sale presented by him which had been dismissed for default; and the other is an appeal from the order dismissing the petition to set aside the sale. The appellant who was the first defendant in O.S. No. 18 of 1934 had been adjudicated an insolvent and the application, was made by him to set aside the sale on various grounds. That application was dismissed for default on the 9th December, 1937. An application to restore the petition to file was made on the next day and that also was dismissed. As a result we have two appeals from the two orders which were passed against the appellant. So far as the application made on the 10th December, 1937, to restore the petition to file is concerned it is not seriously argued that such a petition was competent. The learned Subordinate Judge relied on the Full Bench decision in Arunachalam v. Veerappa Chettiar : AIR1931Mad656 and his finding to the effect that the petition to restore the application to set aside the sale is not maintainable is obviously right. It follows from this that C.M.A. No. 304 of 1938 has no substance and must be dismissed. It is accordingly dismissed with costs.

2. The other appeal which is from the order dismissing the application to set aside the sale is pressed mainly on the ground that the finding of the Court below that such an application made by the appellant is not competent because he had been adjudicated as an insolvent is wrong, and further on the ground that on the merits it had been held that the appellant was really disabled by illness from attending Court when his application came on for hearing and therefore the application for adjournment that was made to the Court below on this ground of illness ought to have been allowed instead of being rejected. The first point, namely, the appellant's right to apply to have the sale set aside is governed by the provisions of Order 21, Rule 90 of the Civil Procedure Code under which the application was made. That rule provides that any person whose interests are affected by the sale may apply to set aside the sale. The question therefore for decision is whether the appellant is not a person whose interests are affected by the sale of the properties in question. Those properties were undoubtedly his properties which had been mortgaged and which had been sold in execution of the mortgage decree. His adjudication as an insolvent and the vesting of these properties and all his other properties in the Official Receiver no doubt deprived him of all interest in the property in praesenti. But does this mean that he ceased to be a person whose interests are affected by the sale of the properties? The point is realty concluded in our opinion by the Full Bench decision in Subbaraya Goundan v. Veerappa Chettiar Bank : AIR1933Mad851 . That was also a case of an insolvent and it was held that the insolvency of the judgment-debtor did not per se render it incompetent for him to continue proceedings initiated by him under Order 21, Rule 90 and that he had also a right to prefer an appeal from an order dismissing such an application. There is an earlier case reported at page 359 of the same volume of the Madras Law Journal decided by a single Judge, namely, Swaminatha Odayar v. Kalyanarama Aiyangar : AIR1933Mad694 . We have also been referred to the latest Full Bench decision in Ayyappa v. Kasi Perumal : AIR1939Mad250 , in which it is pointed out by the learned Chief Justice that the narrower meaning given to the phrase 'whose interests are affected by the sale' in certain decisions is not the correct meaning to be given to those words but that the words should be taken to mean any person whose pecuniary interests are immediately and directly affected and that the decision to Kathiresan Chettiar v. Ramasami Chettiar : AIR1915Mad541(2) , which interpreted the words to mean having an interest in the property sold was wrong, and that decision was overruled expressly by the Full Bench.

3. In these circumstances it is obvious that the learned Subordinate Judge was not right in coming to the contrary conclusion relying on the cases reported in Hari Rao v. Official Assignee, Madras : (1926)50MLJ358 and Venkataramanayya v. Bangarayya (1934) 67 M.L.J. 942, which were hot concerned with the words with which we are now concerned, namely, the words found in Order 21, Rule 90, but with the word 'aggrieved' found in the Insolvency Acts. It seems to us that the words 'whose interests are affected by the sale' must be construed in their ordinary sense, and it is too much to say that merely because a person is adjudicated insolvent his interests are not adversely affected by the sale of property that belonged to him before adjudication. For instance, if the insolvent's property is really worth a lakh of rupees and is sold fraudulently for Rs. 10,000 his interests are clearly affected by such a sale. There is no reason why these words should be interpreted in a narrow sense; on the other hand, as observed already, the point is concluded by authority which is binding on us and we would follow it even if it was not so binding because we take the same view. We find therefore that the lower Court's finding on the right of the appellant to present the application to set aside the sale is wrong and that he is entitled to present the application and to ask the Court to adjudicate upon it.

4. The only other question that remains is whether the petitioner had a reasonable opportunity of being heard when his application came on for hearing. This would turn on the question of the propriety of the order of the Court below refusing to grant an adjournment which was applied for on the 9th December, 1937. It is not now seriously disputed that the appellant was really too ill to be present in Court on that day as he had undergone an operation for fistula. There is the evidence of the doctor who attended on him and there is really no room for doubt on the point; and it may therefore be taken as established that the appellant was really disable by his illness from being present in Court when his application to set aside the sale came on for hearing. In these circumstances the Court below ought to have granted the adjournment that was applied for because the appellant was entitled to have a reasonable opportunity of being present in Court when his application was being heard on its merits. It is said that what the appellant wanted was merely to have his evidence taken on commission and this he could have done in spite of his illness which did not prevent his giving evidence in his own house. This loses sight of the fact that the appellant was not entitled as a matter of course to have a commission taken out because the provisions relating to the issue of a commission do not apply to execution proceedings. Even otherwise, though there is this reference to examination of the appellant on commission for the purpose of obtaining his evidence, it does not mean that the appellant was not also anxious to exercise his right and privilege of being present himself in Court when his case was being taken up. Ordinarily a party is entitled to be given a reasonable opportunity for being physically present himself when his case is being heard, and if his physical presence is made impossible by reason of illness, justice requires that he should be given an adjournment for the purpose of enabling him to be present. In the present case the Court below was made aware of the illness which prevented the appellant from being present in Court and an application for adjournment had been made on this ground. In the circumstances we are of opinion that the lower Court erred in refusing to grant an adjournment and it follows that the appellant should be given a fresh opportunity of establishing his case. This appeal' is therefore allowed and the order of the Court below dismissing the application to set aside the sale is set aside and the application is remanded to the Court below for fresh disposal on the merits according to law. The costs of this appeal will abide the event and should be provided for in the revised order to be passed by the Court below.


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