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Kolli Nagiah Vs. Vappuburi Gopala Krishniah Minor, by Next Friend Manemma and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.252
AppellantKolli Nagiah
RespondentVappuburi Gopala Krishniah Minor, by Next Friend Manemma and anr.
Excerpt:
.....procedure code (act xiv of 1882), section 311 - scope of the section--application to set aside execution sale--proof of substantial damage to petitioner--objection that minor defendant was not properly represented in execution, whether falls under section 311. - - it was said that the decree itself was bad because no guardian ad litem had been appointed, that the execution proceeding was bad because there was no guardian to represent the 2nd defendant in the execution proceeding, and that the property sold did not fetch an adequate price. dealing with the case as a petition under section 811 of civil procedure code of 1882, i must be satisfied that there was both material irregularity in the publication or conduct of the sere and substantial loss resulting to the petitioner as a..........was appointed guardian ad litem but the decree was passed ex parte. in execution of the ex parte decree, immovable property belonging to the defendant was sold. an application was made on behalf of the 2nd defendant to set aside the sale. there were certain irregularities alleged. it was said that the decree itself was bad because no guardian ad litem had been appointed, that the execution proceeding was bad because there was no guardian to represent the 2nd defendant in the execution proceeding, and that the property sold did not fetch an adequate price.2. in the first place, it is necessary to notice the fact that both the courts have held that no substantial damage has accrued to the petitioner. dealing with the case as a petition under section 811 of civil procedure code of.....
Judgment:

Krishnaswamy Aiyar, J.

1. This is an application under Section 115 of the Code of Civil Procedure, 1908, to revise an order passed by the District Judge of Guntur refusing to set aside a sale in execution of a decree. The petitioner was the 2nd defendant in the suit. His elder brother the 1st defendant was appointed guardian ad litem but the decree was passed ex parte. In execution of the ex parte decree, immovable property belonging to the defendant was sold. An application was made on behalf of the 2nd defendant to set aside the sale. There were certain irregularities alleged. It was said that the decree itself was bad because no guardian ad litem had been appointed, that the execution proceeding was bad because there was no guardian to represent the 2nd defendant in the execution proceeding, and that the property sold did not fetch an adequate price.

2. In the first place, it is necessary to notice the fact that both the Courts have held that no substantial damage has accrued to the petitioner. Dealing with the case as a petition under Section 811 of Civil Procedure Code of 1882, I must be satisfied that there was both material irregularity in the publication or conduct of the sere and substantial loss resulting to the petitioner as a consequence of that irregularity. If one of these ingredients is found to be absent, there is no scope for an application under Section 311, Mr. Nagabushanam has not argued anything against the finding that there was no substantial loss nor does he seek to support the revision petition on any ground which properly falls under Section 311 of the Code of 1882. He raises a new point which is not one under Section 311 but which goes to the root of the whole matter. He says that the execution was bad because his client was not represented by a guardian in the execution proceeding. As regards the appointment of guardian in the suit, I think, as a matter of fact, it was made, but the appointment was made just at the time when the decree itself was passed. An application to set aside the decree ex parte was refused by the District Munsif but on appeal the District Judge set aside the ex parte decree. Whether he had jurisdiction to entertain the appeal or not, it is not necessary now for me to enquire. The fact remains that the decree was set aside and I am informed that that decree runs in the same terms as the one subsequently passed. The sale, which is now sought to be impeached was a sale under a decree as it was originally passed. The ground taken by Mr. Nagabushanam before me, is as I have already pointed out, not a ground under Section 311. He really seeks to impeach the decree and the execution proceeding also on the ground that his client was not properly represented at all. It may be that such a point is open to the petitioner but I cannot entertain it in this revision petition which seems to me from an original application to set aside an execution sale under Section 311. I dismiss the petition with costs.


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