1. This is an application under Section 115, Civil Procedure Code, to revise the order of the Subordinate Judge of Mayavaram, dated 11th November 1919, directing an amendment of the sale certificate by including certain properties said to have been fold in auction.
2. Mr. Muthiah Mudaliar on behalf of the respondent raises two preliminary objections to the hearing of the petition, (l) It is 303 days out of time, and (2) the matter in dispute was disposed of by a Bench of this Court by the order on Civil Miscellaneous Appeal No. 370 of 1919 and Civil Revision Petition No. 240 of 1920 [Yagnasami Ayyar v. Chidambaranatha Mudaliar 61 Ind Cas 961 .
3. Mr. Venkatarama Sastri for the petitioner argues that his client was pursuing his remedy in another proceeding, that there was no delay in the prosecution of that remedy, that this being a revision petition the period of limitation is only a rule of Court and (delay?) could be excused for proper reasons and that the order on Civil Miscellaneous Appeal No. 370 of 1919 and Civil Revision Petition No. (sic) of 1920 [ Yognasami Ayyar v. Chidambaranatha Mudaliar 61 Ind Cas 961 ] is not res judicata.
4. The facts of the case are that certain items of property were sold by Court and on 10th November 1919 the auction-purchaser presented an application for amendment of the sale- certificate by the inclusion of certain items which he said were left out by oversight and that they should be included in the sale-certificate. The Subordinate Judge of Mayavaram, without giving notice of the application of the auction-purchaser to the judgment-debtor, ordered on 11th November 1919 that the sale-certificate should be amended an prayed for. The property was ordered to be delivered to the auction-purchaser on 5th December 1919. On 17th December 1919 the petitioner presented the said Civil Miscellaneous Appeal No. 370 of 1919 to the High Court which was disposed of on 7th September 1920. The High Court held that no appeal lay and, as there was no question of jurisdiction involved in the case, there was no ground for interference under Section 115 There upon the petitioner presented this Civil Revision Petition on 2 2th September 1920. Hence the delay of 303 days. Though the High Court, as a rule, does not entertain revision petitions after three months, in proper cases the discretion of the Court could very well be exercised in excusing the delay. I should be most reluctant to excuse a long delay on the part of the litigant in ordinary cases. But in this case the petitioner acted on the advice of one of the recognised leaders of the Bar as to the course he should pursue, which course it was found afterwards to be ineffectual. On further advice he has preferred this petition, Without expressing an opinion as to the disposal of the petition, on this preliminary point, I heard the case on the merits in order to see whether this is a fit case in which I should exercise my discretion in excusing the delay, Without intending to establish a precedent I hold this is a fit case in which the delay could be excused and the petition, should be disposed of on the merits.
5. Mr. Muthiah Mudaliar's second preliminary objection is not tenable The said; Civil Miscellaneous Appeal No. 370 of 1919 and Civil Revision Petition No. 2 O of 1920 [Yagnasami Ayyar v. Chidambaranatha Mudaliar 61 Ind Cas 961 ] were against the order of the the December and though ground No. 6 of the said Civil Miscellaneous Appeal refers to the subject-matter of the present complaint, I cannot bring myself to hold that the matter is res judicata.
6. Coming to the merits of the case, I find that the Subordinate Judge of Mayavaram ordered amendment of the sale-certificate on 10th November 1919 without notice to the judgment-debtor. He has simply written the word 'add' on the application of the auction purchaser and the sale-certificate was accordingly amended by the inclusion of considerable property. It may be that the Subordinate Judge thought that there was no use in giving notice to the judgment debtor as he could not possibly raise any valid objection to the amendment. But whatever might be the result of an objection by the judgment-debtor, to quote the words of the learned Judge of the Calcutta High Court in Aajnt Singh v. Sundar Malt[F.T. Christien 16 Ind. Cas. 567, 'it is an elementary role of universal application and founded upon plainest principles of justice that a judicial order which may possibly affect or prejudice any party cannot be finally made unless he has been afforded an opportunity to be heard.' Vide also Ram Nath Maity v. Rudra Mahanti 24 Ind. Cas. 694 . It was the duty of the Subordinate Judge to have given notice of the auction-purchaser's application to the judgment-debtor, especially in a case where amendment is sought to be made of a sale-certificate, which, as their Lordships of the Privy Council observe, is a solemn document and could not easily be impugned, and I think he has acted with material irregularity in tot giving to the judgment-debtor notice of the auction-purchaser's application of the 10th November 1919 wherein he prayed that the sale certificate be amend, ed by the addition of certain items of Samudayam property: Vide Joydhari Dasya v. Rasik Lal sikdar 24 Ind. Cas. 694 .
7. The next question is, what order should be passed on this petition? In order to decide that, I went into the facts of the case and I am satisfied that no injustice has been done to the judgment debtor by the want of notice. The properties of the judgment-debtor were ordered to be sold in pipe lots, The sale proclamation shows that some of the items had as appurtenant to them certain Samudayam rights. Lots Nos. 1 to 3 were sold. As the sale was held of those lots in accordance with the list prepared and the sale proclamation, it cannot be contended that the Samudayam rights which are appurtenant to the said items have not been sold. It may be that, in certain cases, the Samudayam, rights are separately sold, but, when the Court proceeds to sell these rights as appurtenant to some items, it cannot, with any show of reason, be contended that the rights appurtenant were not sold or that the Court intended to sell the items without the appurtenances. The petitioner presented a petition to the Subordinate Judge of Mayavaram on 2nd December 1919 wherein he stated that the Samudayam property was not purchased by the auction-purchaser as it had not been gold in auction and also seated that it was not published in the said proclamation and that the said property would be gold in auction together with the village Samudayam, The last statement is clearly an incorrect one, for the sale-proclamation does mention the Samudayam properties as appurtenant to the main items of property to be gold. Evidently when this petition was heard by the Sub-Judge on 5th December 1919, the Vakil, who appeared for the petitioner, could not very well sustain the allegation that the Samudayam property was not sold; that is the reason why the Subordinate Judge of Mayavaram in his judgment, dated 5th December 1919, makes no reference to the allegation that the Samudayam properties were not sold in auction. He deals with the other objections raised by she petitioner, I, therefore, come to the conclusion that the petitioner gave up this contention as hopeless, and that is the reason why no application was made to the High Court against the order for amendment of the sale certificate. The matter is more than two years old and very probably other persons have acquired rights under the auction-purchaser and no good purpose will be served by reversing the order of the Subordinate Judge on 11th November 1919 and directing him to re-hear the petition after giving notice to the petitioner. Ho injustice has been caused by the material irregularity in the disposal of the respondent's petition on 11th November 1919, and I do not think it would be proper to interfere with the order passed so far back as 11th November 1919. The petition is, therefore, dismissed with costs.