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Radhakrishnaswami Naidu Vs. V. Annamalai Chettiar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in70Ind.Cas.365
AppellantRadhakrishnaswami Naidu
RespondentV. Annamalai Chettiar and anr.
Cases ReferredEnuga Sundararama Reddi v. Bezwada Pattabhwamareddi
Excerpt:
execution of decree - minor judgment-debtor--majority attained before execution--record not corrected--sale, validity of--knowledge of decree-holder--knowledge of minor--effect. - - he failed to do so and took he is of. there is, in the circumstances already mentioned, very little evidence on the record, as regards the occurrence of irregularity other than that involved in the failure to implead the 8th defendant as a major, we have the evidence of the two villagers of no special position that they never heard proclamation of the sale made in the village......because, although the 8th defendant was on record at the date of the sales a minor, he had in fact attained majority sometime previously. the lower court found that the 8th defendant had attained majority after the decree was obtained against him and mr. bashyam aiyangar in arguing the appeal has not asked us to interfere with that finding. he has argued only that the 8th defendant was prejudiced in the production of his evidence, because witnesses whom he had brought to court refused to stay for the adjourned hearing on the next day preferring to return to a festival in their village the lower court was, we think, quite right in refusing to adjourn for the issue of process to these witnesses to a later date. it was open to the 8th defendant to pay his witnesses date and obtain orders.....
Judgment:

1. The first intention of the 8th defendant-appellant, with which we have to deal is that the Court sale in favour Of the decree-holder-respondent is null and void, because, although the 8th defendant was on record at the date of the sales a minor, he had in fact attained majority sometime previously. The lower Court found that the 8th defendant had attained majority after the decree was obtained against him and Mr. Bashyam Aiyangar in arguing the appeal has not asked us to interfere with that finding. He has argued only that the 8th defendant was prejudiced in the production of his evidence, because witnesses whom he had brought to Court refused to stay for the adjourned hearing on the next day preferring to return to a festival in their village The lower Court was, we think, quite right in refusing to adjourn for the issue of process to these witnesses to a later date. It was open to the 8th defendant to pay his witnesses date and obtain orders from the Court requiring them to attend on the adjournment date. He failed to do so and took he is of. His witnesses being absent It seems to us, in the light of the cm unstices refened by the lower Court in its order on his petition for adjournment, very doubtful whether he ever had taken steps to adduce evidence at all. But on the facts, as he himself admits them, there is no; cause for interference with the judgment on this ground.

2. Returning to the merits of the case, we take it that the 8th defendant had attained majority after the decree and before the application was made to the Court in pursuce of which the sale now under consideration was held. It is urged first that the sale was void, because the notice required by Order XXI, Rule 22, Civil Procedure Code, was issued to the person who had represented the 8th defendant before and after that date as guardian ad litem and not to 8th defendant himself. It is a short answer to this contention that Order XXI, Rule 22 requires the issue of notice only when no order has been made against the judgment-debtor on any previous application within a year of the application, notice of which is in question. We find on reference to the execution application on which sale was Held (and it is not disputed by the 8th defendant) that in Execution Petition No. 82 of 1918 the order for the sale was made on 12th September 1918. The present, Application was presented on 8th September 1919, and, therefore, no question of Use necessity for a notice under Order XXI, Rule 22, Civil Procedure Code, can arise.

3. We turn then to the general plea that the proceedings were null and void or were at least irregular because the 8th defendant was on the record as a minor in spite of his having attained majority before them. The answer given is that the 8th defendant fact knew of the proceedings throughout. It is not disputed that he did so. In fact it is admitted that he applied for an adjournment of the sale in order that he might pay the decree-debt. The only question is whether such knowledge on his part affords an answer to the objection. There is clear authority in Ramachari v. Duratsami Pilli 7 Ind. Dec. 474. Enuga Sundarama Reddi v. Bezwada Pattabhiramareddi 42 Ind. Cas. 421 and Seshagiri Rao v. Taneutunjagannadham 19 M.L.T. 93. That such knowledge will do so; and we follow the decision in Enuga Sundararama Reddi v. Bezwada Pattabhwamareddi 42 Ind. Cas. 421 in holding that this is not the less so, because the plaintiff, decree-holder was throughout aware that the 8th defendant was a major. This contention that the sale is void, therefore, fails.

4. We consider next whether, the sale deed be set aside on the ground that it was conducted in an irregular manner and that by the irregularity substantial loss was caused. There is, in the circumstances already mentioned, very little evidence on the record, As regards the occurrence of irregularity other than that involved in the failure to implead the 8th defendant as a major, we have the evidence of the two villagers of no special position that they never heard proclamation of the sale made in the village. There is on the other side the evidence of the defendant's against the proclamation was made. There is also the presumption which arises in such circumstances based on the regularity of procedure. We are not prepared to hold that the sale-proclamation was not publised.

5. As regards the price realised there is undoubtedly the evidence of the 5th witness, a member of the Taluq and District Board, that the value of the properties is Rs. 20,000. Where as they were sold only for Rs. 10,000.He, however, was willing to buy them in case the sale is set aside and is so far interested. There is no further evidence on this point. We do not, think it is established that substantial loss occurred. We have not been shown how there is any connection between the price realised and the only one of the irregularities alleged, which can connection be regarded as established, the holding of the sale without impleading the 8th defendant as a major, when it is not disputed that the 8th defendant was aware of the sale and was himself asking for six adjournments.

6. In these circumstances, the appeal fails and is dismissed with costs.


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