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Seshagiri Rao and ors. Vs. Sreenivasa Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1920)38MLJ62
AppellantSeshagiri Rao and ors.
RespondentSreenivasa Rao and ors.
Cases ReferredMuthiah Chettiar v. Bana Sahib
Excerpt:
- - bana sahib air1915mad392 is however clearly distinguishable as it was the judgment-debtor who moved the court, to have the sale set aside......plaintiff had taken a mortgage from a member of the judgment-debtor's family and had obtained a decree for sale of the one-sixth share of the joint family properties to which his mortgagor was entitled. under the decree however a one-fourth instead of one-sixth share was brought to sale and purchased by the plaintiff-decree-holder. the learned judges (wallis c.j. and spencer j.) held that the sale in so far as it purported to sell more than one-sixth share awarded by the decree was made without jurisdiction according to the principle laid down by the privy council in malkarjun v. narhari i.l.r. (1900) bom. 337 . the learned vakils for the 9th respondent (the auction-purchaser) vendees relied on the decision in muthia chettiar v. bava sahib : air1915mad392 . in that case the decree.....
Judgment:

1. There is no dispute as to the facts in this case. A suit for maintenance was brought by one Yamuna, Bayee. Some of the present appellants were defendants 9 to 12 in the suit and were added as supplemental defendants as they belonged to a divided branch of the family. Yamuna Bayee obtained a decree for maintenance against defendants 1 to 8 and the maintenance awarded was made a charge on the shares of defendants 1 to 8 in certain properties. The appellants and their three-fourths share of the properties were expressly exonerated under the decree. In 1906 the decree-holder applied for execution of the decree against defendants 1 to 8 only and no notice of the execution proceedings was taken out to the appellants 1 to 4. Certain lands were attached as belonging to the first defendant in the suit and on 26th January 1910 3 acres 84 cents of land in Shrotriem Thenambakkam village including the three-fourths share of the appellants were sold in court auction and purchased by one Murugesam Chetty the present 9th respondent. The sale was confirmed on the 16th July 1910 and a sale certificate issued to the auction-purchaser on the 18th November 1910, delivery of the properties being given on the 16th December 1910. On 25th July 1911 (a year and seven months after the sale) the appellants filed a suit, O.S. No. 378 of 1911 in the Conjeeveram District Munsif's Court to set aside the auction sale and for partition and recovery of their three-fourths share alleging that the sale was invalid so far as their share of their properties was concerned. The District Munsif dismissed the suit on the ground that as the plaintiffs were parties to the suit in execution of which the sale was held, it was barred by Section 47 of the Code of Civil Procedure. The District Munsif's decision was affirmed on appeal by the District Judge. In S.A. No. 356 of 1914 the High Court remanded the suit to the court of first instance for disposal as a proceeding under Section 47 of the Code of Civil Procedure, the question whether the application was barred by limitation being left open. The lower Courts have dismissed the application as barred by Article 166 of the Limitation Act. Hence the present appeal. Mr. Ananthakrishna Aiyar for the appellants contends that the lower court erred in applying Article 166 of the Limitation Act,and that the article applicable is Article 181 which provides a period of three years from the time when the right to apply accrues in the case of the application to which no period of limitation is provided elsewhere in the Schedule or by Section 48 of the Code of Civil Procedure. In our opinion the application is governed by Article 181 and not by Article 166 of the Limitation Act and is consequently not barred by limitation as it was made within the period prescribed by Article 181. The appellants were parties to the suit (see the explanation to Section 47 of the Code of Civil Procedure) but were not parties to the decree under which they were exonerated, no notice of the application for attachment and sale of the properties was admittedly given to them and they were strangers to the execution proceedings.

2. It is not disputed that under the terms of the decree the court has no power to sell the appellant's three-fourths share in the properties. The sale was void for want of jurisdiction vide Raghunath Das v. Sundar Das Khetri I.L.R. (1914) Cal. 72 , Shyam Mandal v. Satinath Bannerjee I.L.R. (1916) Cal. 954 and Shinbai v. Yesoo I.L.R. (1918) Bom. 235 . If an execution sale is a nullity (i.e., is made without jurisdiction or is void ab initio, Article 166 has in our view no application and the residuary Article 181 should be applied. We are justified in our conclusion by the decision in Second Appeal No. 389 of 1914. In that case the facts were that the plaintiff had taken a mortgage from a member of the judgment-debtor's family and had obtained a decree for sale of the one-sixth share of the joint family properties to which his mortgagor was entitled. Under the decree however a one-fourth instead of one-sixth share was brought to sale and purchased by the plaintiff-decree-holder. The learned Judges (Wallis C.J. and Spencer J.) held that the sale in so far as it purported to sell more than one-sixth share awarded by the decree was made without jurisdiction according to the principle laid down by the Privy Council in Malkarjun v. Narhari I.L.R. (1900) Bom. 337 . The learned Vakils for the 9th respondent (the auction-purchaser) vendees relied on the decision in Muthia Chettiar v. Bava Sahib : AIR1915Mad392 . In that case the decree directed the sale of items in a particular order. They were however sold in a different order. It was held that an application to set aside the sale on the ground that it took place contrary to the direction in the decree was one under Section 47 of the Code of Civil Procedure and would be governed by Article 166. Muthiah Chettiar v. Bana Sahib : AIR1915Mad392 is however clearly distinguishable as it was the judgment-debtor who moved the Court, to have the sale set aside. The facts of the present case are certainly different. The appeal is accordingly allowed with costs payable by the 9th respondent.

3. The District Munsif is directed to restore the appellant's application to set aside the sale to his file and dispose of it according to law.


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