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Kothayadath Karunakaran Nair Vs. Methalayil Chathu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1956)1MLJ47
AppellantKothayadath Karunakaran Nair
RespondentMethalayil Chathu
Cases ReferredJagannath v. Perumal Naidu
Excerpt:
.....the petitioner, because he was aware of the decree-holder's petition for permission to bid and the sale proclamation and the sale. but whether failure to issue a notice under order 21, rule 66. civil procedure code, to the decree-holder or judgment-debtor will be a mere irregularity, for which the sale can be set aside only if substantial injury consequent on that irregularity is proved or whether it will be an illegality making the whole sale null and void, was not decided by the privy council and the learned counsel must look elsewhere for decisions on this point. kuttikrishna menon for the decree-holder cited five rulings of this court and some rulings of nagpur and lahore high courts, holding that mere failure to issue a notice under order 21, rule 66, civil procedure code, to the..........notice under order 21, rule 66, civil procedure code, had gone to this judgment-debtor before the sale proclamation was drawn up or made, and that the absence of service of such mandatory notice on him would amount to an illegality and would make the sale null and void, especially when this was not a case of execution more than two years, after the date of the decree and notice under order 21, rule 22, civil procedure code, would be required. both the lower courts have, however, found that this petitioner, the judgment-debtor, had notice, exhibit b-8, regarding the petition of the decree-holder for permission to bid, and that he had refused to receive the notice. it was also held by the lower appellate court that the sale proclamation was affixed to his property and that the petitioner.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition to revise and set aside the order of the Subordinate Judge of South Malabar in A.S. No. 130 of 1952 on his file, reversing the order of the District Munsif in E.A. No. 74 of 1949 (E.A. 1126 of 1949) setting aside the sale held in E.P. 11 of 1949 and dismissing the petition filed by this petitioner, Karunakaran Nair, under Order 21, Rule 90, Civil Procedure Code, to set aside the sale.

2. The short ground taken by Mr. Gopalan Nambiar for the petitioner, Karunakaran Nair, was that both the lower Courts below had agreed that there was no satisfactory evidence to show that the mandatory notice under Order 21, Rule 66, Civil Procedure Code, had gone to this judgment-debtor before the sale proclamation was drawn up or made, and that the absence of service of such mandatory notice on him would amount to an illegality and would make the sale null and void, especially when this was not a case of execution more than two years, after the date of the decree and notice under Order 21, Rule 22, Civil Procedure Code, would be required. Both the lower Courts have, however, found that this petitioner, the judgment-debtor, had notice, Exhibit B-8, regarding the petition of the decree-holder for permission to bid, and that he had refused to receive the notice. It was also held by the lower appellate Court that the sale proclamation was affixed to his property and that the petitioner must have been aware of it. The learned Subordinate Judge, therefore, held that, at best, the failure to issue notice under Order 21, Rule 66, Civil Procedure Code, to the petitioner before drawing up the proclamation was only an irregularity and that the irregularity had not caused any injury, let alone substantial injury to the petitioner, because he was aware of the decree-holder's petition for permission to bid and the sale proclamation and the sale. He also held that, there being no nullity but only an irregularity, the petition was barred by limitation under Article 166.

3. Mr. Gopalan Nambiar cited Marudanayagam Pillai v. Manickavasakam Chettiar (1945) 1 M.L.J. 229 : L.R. 72 IndAp 104 : L.R. (1945) Mad. 601 where the Privy Council has held that Order 21, Rule 66, Civil Procedure Code, imposes upon the Court the duty of causing a proclamation of the intended sale to be made and requires the proclamation to be drawn up after notice to the decree-holder and the judgment-debtor. He argued from this that the sale held without a notice to the judgment-debtor under Order 21, Rule 66, Civil Procedure Code, would be null and void. Unfortunately for him, the Privy Council says no such thing, but has simply summarised the mandatory provisions of Order 21, Rule 66, Civil Procedure Code. Of course, it will disprove the contention of Mr. Kuttikrishna Menon that the settlement of a sale proclamation is only an administrative matter and show that it is a judicial or quasi-judicial matter in which not only the Court is interested but also the decree-holder and the judgment-debtor whose interests are also to be protected by it, and not merely the interests of the would-be auction-purchasers, as contended by Mr. Kuttikrishna Menon. But whether failure to issue a notice under Order 21, Rule 66. Civil Procedure Code, to the decree-holder or judgment-debtor will be a mere irregularity, for which the sale can be set aside only if substantial injury consequent on that irregularity is proved or whether it will be an illegality making the whole sale null and void, was not decided by the Privy Council and the learned Counsel must look elsewhere for decisions on this point.

4. Mr. Kuttikrishna Menon for the decree-holder cited five rulings of this Court and some rulings of Nagpur and Lahore High Courts, holding that mere failure to issue a notice under Order 21, Rule 66, Civil Procedure Code, to the judgment-debtor would be a mere irregularity and would not by itself, vitiate the sale and make it null and void, or affect its validity. A Bench of this Court consisting of Old field and Seshagiri Aiyar, JJ., has held in Neelu Neithiar v. Subramania Moothan : AIR1921Mad583 as follows:

The notice referred to in Order 21, Rule 66, is an incident in the course of execution proceedings the validity of which is independent of it.

From that decision, two conclusions follow. The first is that if a sale is null and void, the proper remedy is a petition under Section 47, Civil Procedure Code and not under Order 21, Rule 90, Civil Procedure Code and therefore a second appeal, and not a civil revision petition will lie to this Court. Secondly, the limitation period will be governed by Article 181 of the Limitation Act, if the sale is void; but if the sale is not null and void but only affected by a mere irregularity a petition under Order 21, Rule 90, Civil Procedure Code, will lie, and the sale can be set aside only on proof of irregularity followed by substantial injury and the limitation period will be governed by Article 166. The Bench seems to have considered that a mere absence of a notice under Order 21, Rule 66, Civil Procedure Code, would not, by itself, make the sale a nullity but would at best be only an irregularity. It, therefore, says, in effect that each case has to be dealt with on its merits on the facts and the evidence. So, of course it is possible that in some rare cases a failure to issue notice under Order 21, Rule 66, Civil Procedure Code, may make the sale void as when the sale is held without the judgment-debtor being ever aware of it, but that, normally a mere failure to issue a notice under Order 21, Rule 66, Civil Procedure Code, to the judgment-debtor would not make the sale null and void but would only be an irregularity, especially if the evidence shows as here that the judgment-debtor was very well aware of the sale proclamation and the sale, even though a notice under Order 21, Rule 66, was not given to him. On this basis, every one of the rulings relied on by either side and appearing at first sight to be contradictory can be easily reconciled. Thus in Venkateswara Ettu Naicker v. Ayyammal (1950) 1 M.L.J. 22, a judgment of Krishnaswami Nayudu, J., relied on by Mr. Gopalan Nambiar, it is clear that there was no proclamation of the sale in the village, and the properties were grossly under-valued and sold for a low value and there was no proof that the judgment-debtor had any notice of the proclamation or of the sale even at a latter stage, as there. Rightly, therefore, the learned Judge held in that case that the failure to give notice to the judgment-debtor under Order 21, Rule 66, would not be a mere irregularity, in the publication or conduct of the sale, but amounted to an illegality nullifying the sale. Mr. Gopalan Nambiar relied on the following passage from the judgment to show that any failure to issue a notice under Order 21, Rule 66, will be an illegality making the sale void:

The object of Order 21, Rule 66, is to afford a security for the fairness of public sales, that it has been properly published and it would attract purchasers. But if the specific provision as to proclamation is violated there could be no doubt that the sale cannot be allowed to stand. It cannot be said that the total failure to make the proclamation under Order 21, Rule 66, is a mere irregularity in the publication or conduct of the sale. In view of the decision in Jayarama Aiyar v. Vridhagiri Aiyar : AIR1921Mad583 and on the finding of fact of both the Courts the sale held on the 15th September, 1943, must be held to be illegal and void and cannot be allowed to stand, and is therefore liable to be set aside.

But that passage will not help him in the facts of this case where the petitioner knew Cull well what the proclamation was and, had notice of the leave to bid petition and the proclamation was also affixed to his land. Krishnaswami Nayudu, J., cannot be held to have ruled that a failure to issue a notice to a judgment-debtor under Order 21, Rule 66, Civil Procedure Code, without more would make the sale illegal and void. That would be too extreme a position to take in view of his referring to the findings of fact of both the Courts and in view of the rulings of this Court and of other High Courts. As has been already stated, this Court has held in Neelu Nethiar v. Subramania Moothan (1919) 11 L.W. 59, that a mere omission to issue a notice under Order 21, Rule 66, without more, would not make the sale illegal or a nullity and that ruling was followed by Kuppuswami Ayyar, J., in Periyanannan Kaladi v. Ramaswami Pallavarayan : AIR1945Mad499 , where the learned Judge held that Article 166 of the Limitation Act would apply to such cases. Yahya Ali, J., held to the same effect in Ammani Ammal v. Sabapathi Pillai : (1948)1MLJ422 . Panchapakesa Sastri, J. held to the same effect in Ghulam Kadar v. The Municipal Council, Nagapattinam (1950) 1 M.L.J. 432. A Bench of this Court, consisting of Satyanarayana Rao and Raghava Rao, JJ. in Seshagiri Aiyar v. Valambal Ammal : AIR1952Mad377 , held to the same effect. In the Nagpur and Lahore High Courts, the same view has been held by some Judges. No contrary view has been held by any Judges of this Court or by Judges of other High Courts, or by the Federal Court, the Supreme Court or the Privy Council.

5. Mr. Gopalan Nambiar then relied on certain observations made by Rajamannar, G.J., in Srikakula Chinna Venkatanarayana v. Pannapati Elias : AIR1954Mad1024 : . There the learned. Chief Justice held that where there was no publication of the sale, whatever the sale would be a nullity. That will not help the petitioner in this case, as this is not a case where there was no publication (there being an actual publication) or where a property different from that notified was sold, or where the property was sold ahead of the date fixed in the proclamation or where other such gross irregularities as noted in some cases, where the sales were held to be unhesistatingly null and void, took place. Mr. Gopalan Nambiar relied next on a passage in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, a decision of a Bench of this Court consisting of Govinda Menon and Ramaswami, JJ. It is observed in that passage by the learned Judges as follows:

Where the Court has 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 his being told that it is being sold.

These observations will not help Mr. Gopalan Nambiar in the facts of this case, as the petitioner was clearly told that his properties were being sold by being given notice in the leave to bid petition before the sale and by the sale proclamation being; affixed on the land.

6. I agree with Mr. Gopalan Nambiar that there may be some rare cases where failure to issue a notice under Order 21, Rule 66, Civil Procedure Code, to the judgment-debtor may make a sale held, without his knowing at all about any such proclamation or the sale a nullity, though in almost all these cases the sales can also be set aside under Order 21, Rule 90, Civil Procedure Code, for irregularity and consequent injury. Thus, where a notice under Order 21, Rule 22, Civil Procedure Code, is not required, as the execution petition is filed within 2 years of the decree and where the notice under Order 21, Rule 66, is the very first notice which will go to the judgment-debtor, and such notice is not issued and the proclamation is drawn up and the sale is held without the judgment-debtor being ever aware of the proclamation or the sale, then the sale so held will be a nullity and it will not be a case of mere irregularity and any knowledge about the sale or sale proclamation after the sale is over will not alter the matter. It will be like a person being locked up without a legal warrant where the law requires a warrant, and the officer effecting the arrest some days thereafter getting a warrant for his arrest and seeking to justify the original arrest or detention. Almost all those cases of nullity will also be cases where the sale can be set aside for irregularity and substantial injury.

7. The border line is thin. But this is not a case like that. This is a case where the petitioner, the judgment-debtor has only a hollow egg-shell to show, in the shape of the empty technical objection urged, and there is no substance at all. He was fully aware of the sale proclamation and the sale and suffered not the least damage or injury and he has caught hold of this hollow egg-shell technicality as a wea on with which to subvert the sale. The learned Subordinate Judge was right in holding that the omission to issue a notice under Order 21, Rule 66, Civil Procedure Code, would in the circumstances of this case amount only to an irregularity and never to an illegality. Indeed I may add that the petitioner top appears to have been well aware of this. That is the reason why he filed the petition under Order 21, Rule 90, and Section 47, Civil Procedure Code. If the sale were a nullity the proper section to be put in was only Section 47, Civil Procedure Code. But, as already stated, though most of the cases of sale without notice under Order 21, Rule 66, Civil Procedure Code, would fall only under Order 21, Rule 90, Civil Procedure Code, some rare cases may fall only under Section 47, Civil Procedure Code, the distinction depending on the facts in each case showing knowledge of the sale. That is why evidently the petition was filed both under Order 21, Rule 90, Civil Procedure Code, and under Section 47, Civil Procedure Code. The facts in this case show that the petition should have been filed only under Order 21, Rule 90, Civil Procedure Code. The petition was dismissed because no substantial injury was proved consequent on the irregularity, namely, the failure to issue a notice to the petitioner under Order 21 Rule 66, Civil Procedure Code.

8. This revision petition, therefore, deserves to be and is hereby dismissed, but without costs, as the various rulings cited above must have confused the petitioner into thinking that the sale in this case would be a nullity on mere proof of the omission to issue a notice to him under Order 21, Rule 66, Civil Procedure Code, and without any proof of absence of knowledge of the sale.


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