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Varankkot Illath Subramaniyam Nambudri, Karnavan and Manager of the Illom Vs. V.K. Vykunda Kammathi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1923Mad48; (1922)43MLJ477
AppellantVarankkot Illath Subramaniyam Nambudri, Karnavan and Manager of the Illom
RespondentV.K. Vykunda Kammathi and ors.
Cases ReferredGanapathy Mudaliar v. Krishnama Chariar I.L.R.
Excerpt:
- .....the consent of all parties interested probably it is an irregularity only and does not render the sale a nullity. on a similar section (order 21, rule 84) it was held that it is a case of mere irregularity. venkoba v. santa i.l. 14 mad. 227, and ahmad bakhsh v. salla prasad and azmat ali i.l.r. 28 all. 238.3. though the terms of order 21, rule 68 c.p.c. are mandatory the words being 'no sale shall take place' - it was held that the sale was not a nullity tasadok rasul khan v. ahmad hussain i.l.r. 21 cal. 66. a sale contrary to the provisions of section 99, transfer of property act, was held not to be a nullity. mayan pathuth v. pakuran i.l.r. 22 mad. 347, and dhariukota venkayya v. budha raju surayya gain i.l.r. 30 mad. 362.4. apart from this in this case, we think the fact that the.....
Judgment:

1. A decree was obtained in Original Suit No. 4 of 1913 by the respondents before us against a junior member of the illom of the Appellant. In execution of the decree, there was a sale on 26-8-1915. At the time of the sale, the judgment-debtor died and was represented by the Karnavan of the illom. The decree-holder was the purchaser in execution. He was allowed to set off the decree amount against the sale price and pay the balance. But as he stated that he could not deposit it within 15 days, the District Judge allowed him 6 days more time, that is, up to 16th September. The balance was actually deposited on 17th September, and afterwards, it was disposed of for the benefit of the illom and with the consent of the Karnavan (M.P. No. 787 of 1915). The sale was confirmed and a sale certificate was issued to the purchaser in September 1915. The present petition is tiled in December 192u, under Sections 47 and 151, praying the District Judge to hold that the sale was a nullity. The District Judge dismissed the petition as barred.

2. We agree with the contention of Mr. Menon (the learned Counsel for the appellant) to this extent, i.e., that a Court ought, not to extend the time for deposit by the purchaser (Order 21, Rule 85 C.P.C.) or accept a deposit paid beyond time without the consent of all the parties concerned. If the Court does so extend the time or accept the deposit without the consent of all parties interested probably it is an irregularity only and does not render the sale a nullity. On a similar section (Order 21, Rule 84) it was held that it is a case of mere irregularity. Venkoba v. Santa I.L. 14 Mad. 227, and Ahmad Bakhsh v. Salla Prasad and Azmat Ali I.L.R. 28 All. 238.

3. Though the terms of Order 21, Rule 68 C.P.C. are mandatory the words being 'no sale shall take place' - it was held that the sale was not a nullity Tasadok Rasul Khan v. Ahmad Hussain I.L.R. 21 Cal. 66. A sale contrary to the provisions of Section 99, Transfer of Property Act, was held not to be a nullity. Mayan Pathuth v. Pakuran I.L.R. 22 Mad. 347, and Dhariukota Venkayya v. Budha Raju Surayya Gain I.L.R. 30 Mad. 362.

4. Apart from this in this case, we think the fact that the appellant's Karnavan drew the amount deposited on 17-9-1915, and did not object to the confirmation of the sale shows that he waived any objection to the sale on the ground, that the extension of time was made without his consent. We think it is open to all the parties concerned in a sale - decree-holder, auction-purchaser, and judgment-debtor if there are three or decree-holder (who is also auction-purchaser) and judgment-debtor if there are two only - not to insist on a resale on account of the delay in the deposit and to remain content with the sale actually held. In such a case, there is no breach of the provisions of the Code and the old sale taken with the waiver is equivalent to a resale. See Freeman on Execution Section 44 page 201, Freeman on Void Judicial Sales, 50 Pages 171 and 173; Klebar on Void Judicial Sales, page 23. The fact of the issue of a sale certificate is conclusive if it is not set aside, sale certificates not being decuments which can be lightly regarded or loosely construed. Balakrishna v. Masuma Bibi I.L.R. 5 All. 142 and Ramabadra Naidu v. Kadirisami Naicker I.L.R. 44 Mad. 483. The contentions that the deposit was wrongly accepted and that the time was wrongly extended could have and ought to have been raised prior to the confirmation. Ganapathy Mudaliar v. Krishnama Chariar I.L.R. 41 Mad. 403 . We are therefore of opinion that the sale in this case was not a nullity. The sale being found not to be a nullity any application to set it aside must be filed within thirty days (Article 166 of the Indian Limitation Act) and the present application is thus barred. The appeal is dismissed with costs.


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