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Jagannath Vs. Perumal Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 521 of 1949
Judge
Reported inAIR1955Mad233
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 66 and 90
AppellantJagannath
RespondentPerumal Naidu and ors.
Appellant AdvocateM.S. Venkatarama Iyer and ;K. Sankara Sastry, Advs.
Respondent AdvocateR. Gopalaswami Iyengar, ;S. Thyagaraja Iyer, ;T.S. Venkatarama Iyer and ;G. Santhamurthy Naidu, Advs.
DispositionAppeal dismissed
Cases ReferredMian Jan v. Man Singh
Excerpt:
.....- such orders should be construed very strictly - since no notice ever given to defendants 3 and 6 entire proceedings were ab initio null and void - held, sale did not convey any of their rights in favour of purchaser. - - after obtaining a decree against the first defendant for a certain sum of money as well as against defendants 3 and 6 who stood surety for the production of the first defendant in the suit in the event of a decree being passed for the payment of the decree amount, e. 55 of 1935 for a declaration that the order on the claim petition was wrong and that the decree-holder was entitled to proceed against the one-eighth share of the second defendant as well. proclaim and sell 13-10'.in a matter like this where a person's property is being sold, which according to him..........claim petition filed by the second defendant and declare that second defendant's interest in the suit properties is liable for the decree obtained by the fourth defendant (decree-holder in o. s. no. 102 of 1930) against the first defendant in the said o. s. no. 102 of 1930.'the result of this adjudication is the complete erasing out of the order made on the second defendant's claim petition by which his claim had been upheld. by the decree in o. s. no. 55 of 1935 the attachment on the one-eighth share had been restored and therefore the decree-holder was entitled to proceed against the one-fourth share in the entire properties. while the suit was pending the sale proclamation in e. p. no. 1289 of 1933 relating to the zamin lands as welt as other lands had been filed in court and they.....
Judgment:

Govinda Menon, J.

1. The plaintiff who is a purchaser in court-auction of certain rights in zamin and private properties situated in Chingleput district, and alleged to belong to some members of a joint Hindu family, la the appellant in this appeal. His suit for ascertainment of the share of the judgment-debtors and for recovery of such share by separate allotment has been decreed by the lower court only to the extent of the 1/4th share belonging to the first and second defendants and aggrieved by the dismissal of the suit with regard to the rest, he has preferred this appeal.

2. Defendants 1, 3, 6 and the father of the 7th defendant were members of a joint Hindu family governed by the Mitakshara law. The second defendant is the son of the first defendant. Defendants 4 and 5 are the sons of the third defendant. In execution of the decree in O. S. No. 132 of 1930 on the file of the District Munsif's Court of Chingleput, the share of some of the defendants had been brought to sale. The question is what exactly was the share that has been sold and purchased by the third party purchaser, who is the plaintiff.

3. The family had a half share in certain properties obtained under a razinama decree in O. S. No. 43 of 1925 in the same District Munsif's Court of Chingleput dated 16-11-1933. This half share belonged jointly to the four brothers, defendants 1, 3, 6 and the father of the 7th defendant and as such each one of the brothers and their progeny would be entitled to a one-fourth of this half share in the zamin and private lands. After obtaining a decree against the first defendant for a certain sum of money as well as against defendants 3 and 6 who stood surety for the production of the first defendant in the suit in the event of a decree being passed for the payment of the decree amount, E. P. No. 1289 of 1933 was filed by the decree-holder Chunilal Sowcar who is alleged to be the master of the purchaser plaintiff against defendants 1 to 3 and 6 for the sale of their three-fourth share in the half share obtained by the joint family as a result of O. S. No. 45 of 1925.

Attachment of the shares of the defendants was duly made after notice to them. Thereafter defendants 3 and 6 put in an application stating that their shares cannot be sold until and unless the share of the first defendant and his son in the Joint family was sold and that only if the amount so realised, was found not sufficient should then share be proceeded against. On 14-8-1934 the Court ordered that the decree-holder should proceed against the one-fourth share of the first and second defendants and if the amount realised by that sale was not sufficient to liquidate the entire decree amount, then only the share of defendants 3 and 6 should be proceeded against. After this order was passed, the second defendant filed a claim petition stating that his one-eighth share cannot be proceeded against for reasons which it is unnecessary to set out at this stage. The Court upheld the objection on 28-8-1935 and held that only the first defendant's one-eighth share can be sold.

Thereafter the sixth defendant filed O. S. No. 55 of 1935 for a declaration that the order on the claim petition was wrong and that the decree-holder was entitled to proceed against the one-eighth share of the second defendant as well. This is rather a curious proceeding which inverts the ordinary state of things because the claim was by the second defendant and the aggrieved party was the plaintiff. But the reason why the sixth defendant filed the suit was that if only a one-eighth share in the properties was sold, then probably a part of the decree amount would remain unpaid in which case the shares of defendants 3 and 6 would be sold. Now this claim suit was decreed on 10-7-1937 and para. 5 of the judgment in that suit was to the following effect:

'I therefore set aside the order passed on 28-8-1935 on the claim petition filed by the second defendant and declare that second defendant's interest in the suit properties is liable for the decree obtained by the fourth defendant (decree-holder in O. S. No. 102 of 1930) against the first defendant in the said O. S. No. 102 of 1930.'

The result of this adjudication is the complete erasing out of the order made on the second defendant's claim petition by which his claim had been upheld. By the decree in O. S. No. 55 of 1935 the attachment on the one-eighth share had been restored and therefore the decree-holder was entitled to proceed against the one-fourth share in the entire properties. While the suit was pending the sale proclamation in E. P. No. 1289 of 1933 relating to the zamin lands as welt as other lands had been filed in court and they are evidenced by Ex. B. 2, B. 3 and B. 4. On 14-12-1936 the executing court dismissed E. P. No. 1289 of 1933 for reasons which are not very apparent but held that the attachment of the shares not only of the first and second defendants but of the third and sixth defendants should also continue.

4. In this 'state of things, on 31-1-1937, the decree-holder filed E. P. No. 308 of 1937 for the sale of the properties, viz., the shares of defendants 1, 2, 3 and 6. What was claimed in that petition was that three-fourth of the share in lot No. 1 and lot No. 3 and one-fourth or one-eighth in lot Nos. 2 and 4 should be sold. The proclamations evidencing the attempt at sale in September 1931 are Exs. B. 5, B. 6 and B. 7. In pursuance to this, the sale was held on 13-10-1937 and the properties were purchased by the present plaintiff who is alleged to be the decree-holder's kariastha for a paltry sum of Rs. 70. See Ex. A. 1. Three months before the last day of limitation, the suit out of which this appeal arose has been filed for ascertainment of the plaintiff's share and for recovery of possession after allotment of it to the plaintiff.

5. The contesting defendants in the court below were defendants 2, 3 and 6. The second defendant's plea was that he was not a party to E. P. No. 308 of 1937 and the sale of his one-eighth share was therefore null and void. Defendants 3 and 6 put forth the plea that the sale in E. P. No. 308 of 1937 was in direct contravention or violation of the earlier order made by the court in E. P. No. 1289 and that the shares of defendants 3 and 6 should be sold only after exhausting the shares of defendants 1 and 2; and since that was not done but the entire rights of defendants 1, 2, 3 and 6 were proclaimed and sold by Exs. B. 5, B. 6 and B. 7 it was alleged that the sale of the shares of defendants 3 and 6 was a nullity and, as such the purchaser was not entitled to have a partition of their shares. The lower Court upheld the contentions of defendants 3 and 6 but did not find it possible to agree with the plea put forward by the second defendant and therefore a preliminary decree for partition of the one-fourth share in the properties was passed and the suit against the shares of defendants 3 and 8 was dismissed.

6. The question very elaborately argued by Mr. M.S. Venkatarama Aiyar on behalf of the plaintiff appellant is that even if there was a violation of a previous order directing the order in which the property should be sold, still it was only an irregularity and as such cannot be pleaded unless the aggrieved judgment-debtors had filed an application under Article 166, Limitation Act, to set aside the sale under Order 21, Rule 90, C. P. C. On the other hand Mr. Gopalaswami Aiyangar for defendants 3 and 6 contends that the entire proceedings evidenced by E. P. No. 308 of 1937 and the proclamations Exs. B. 5, B. 6 and B. 7 should be deemed to be 'ab initio' void, as against defendants 3 and 6 because defendants 3 and 6 were not aware of the E. P. No. 308 of 1937 at all and under those circumstances any sale held in pursuance of that application cannot bind them or their properties. On a perusal of E. P. No. 308 of 1931 it is clear to us that defendants 3 and 6 were not served with notice of that application. This E. P. after one or two returns was finally represented on 27-4-1937. On 3-5-1937 the District Munsif ordered notice to the counter petitioners in the E. P. i.e., defendants 1, 3 and 6 under Order 21, Rule 66, C. P. C.

The next entry is dated 9-7-1937 and it reads: 'R. 1 served. Respondents 2 and 3 absent. Affixed. Absent. F. N. Respondents 2 and 3. 5-8-1937.' It is therefore clear that the first notice issued to defendants 3 and 6 had not been served on them. We find the next entry on 5-8-1937 by a successor District Munsif in the following terms: 'Notice not returned. Await 14th August 1937.' When the matter was again taken up for hearing on 14-8-1937, the following entry was made 'Absent. Proclaim and sell 13/10. Hearing 18/10'. On 13-10-1931 the property was sold to third party Jaganath. Further details about the sale price of the various lots are also given. The confirmation of the sale took place on 15-11-1937. It is clear from a perusal of these entries that on 14-8-1937 when the execution petition came up for proclamation and selling the properties, defendants 3 and 6 had not been served. Mr. Venkatarama 'Aiyar wants the courts to infer that these defendants had been served because of the words 'absent. Proclaim and sell 13-10'. In a matter like this where a person's property is being sold, which according to him was done in his absence, the court must be satisfied that he had been given an opportunity to put forward his plea before any such action is taken. Number of cases of this 'Court have laid down that such orders should be construed very strictly and we are not prepared to say from the bald and meagre endorsement contained on the E. P. no. 308 of 1937 that defendants 3 and 6 had been served of that E. P.

If that were so, the entire sale proclamation andthe subsequent sales held in their absence shouldbe deemed to be, absolutely null and void'ab initio', in which case the rights in the properties of defendants 3 and 6 have not passed to thepurchaser at all.

7. Mr. Venkatarama Aiyar then argued that though E. P. No. 1289 of 1933 was dismissed on 14-12-1936, the attachment against the shares of defendants 3 and 6 had been continued. It was unnecessary to give fresh notice to them under Order 21, Rule 66, C. P. C., as E. P. No. 308 of 1937 must be deemed to be a continuation of E. P. No. 1289 of 1933. This argument lacks any foundation for the reason that in E. P. No. 308 of 1937, there is no mention whatever that the same is a continuation. In fact in column 6 regarding previous applications, entries Nos. 1 to 6 deal with applications prior to E. P. No. 1289 of 1933 and the 7th entry is as follows: 'E. P. No. 1289 -of 1933 filed for attachment of defendants immovable properties was dismissed on 14-12-1936.' Nowhere in this document do we find any indication that E. P. No. 308 of 1937 was either intended to be, or should be deemed to be, a continuation of E. P. No. 1289 of 1933. Therefore we are unable to accede to the contention of the learned counsel that E. P. No. 308 of 1937 was a continuation of the old E. P.

8. Mr. Venkatarama Aiyar Invited out attention to various cases but on the facts of this case not one of them has any application. In - 'Vasudeva v. Mani Naika', (A), the learned Chief Justice and Venkatarama Aiyar J. held that if a certain date is fixed for the sale of immovable properties in the proclamation and the sale was held oh another day, then the aggrieved judgment-debtor's remedy is to file an application under Order 21, Rule 90, C. P. C., within the thirty days allowed by law and not to wait and say that the entire sale is void. We are of opinion that this decision has no relevancy at all. Three other cases were cited before us, viz., -- 'Ammakutti Achi v. Doraiswami Aiyar : AIR1928Mad140 ; -- 'Palaniappa v. Arumuga', AIR 1917 Mad 877 (C) and --'Muthiah Chettiar v. Bawa Sahib', AIR 1915 Mad 392 (D). In : AIR1928Mad140 , it was held that a sale held in contravention of a particular order in the decree was only irregular. But that is not a case where at the time of the sale the judgment-debtor did not have any notice of the proceedings. So also in AIR 1917 Mad 877 (C) there are observations at page 878 to the effect that a sale in contravention of the order in which the properties should be sold as set forth in the decree is only irregular and not void. In AIR 1915 Mad 392 (D) also no question as regards notice arose.

9. On the other hand learned counsel for the respondents Mr. Gopalaswami Aiyangar invited our attention to two cases, viz., -- 'Ramanathan v. Arunachalam Chetty', AIR 1914 Mad 261 (E) and -- 'Mian Jan v. Man Singh', 2 All 686 (F), where there are observations to the effect that where the Court had no Jurisdiction to sell the properties, then any sale held on such basis would be a nullity. The jurisdiction to sell a property can arise in a court only where the owner is given notice of the attachment and sale. It is very plain that a person's property cannot be sold without he being told that it is being sold. In these circumstances we feel that since no notice of E. P. No. 308 of 1931 was ever given to defendants 3 and 6, the entire proceedings were 'ab initio' null and void and the sale did not therefore convey any of their rights in favour of the purchaser. The decision of the learned Subordinate Judge on this point has to be upheld.

10. There is another point raised as to whether the suit having been filed more than six years after the date of the confirmation is barred by limitation or not, on which point we are expressing our opinion in the connected appeal to the effect that the suit is not barred. In these circumstances we do not find it expedient or just to interfere with the decision of the lower court and this appeal is dismissed with one set of costs of respondents 4, 5, 11 and 12, 12th respondent being the legal representative of the sixth defendant.


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