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(Badam) Seshiayya Vs. (Grandhi) Sattiraju - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1930Mad414
Appellant(Badam) Seshiayya
Respondent(Grandhi) Sattiraju
Cases ReferredSivagami Achi v. Subramania Ayyar
Excerpt:
- - 3. as to the formal objections based on rules 67 and 176, civil rules of practice, there is a substantive grievance raised by the petition and if it is true the fact that its redress was not sought in more act language than that adopted, which was perfectly easy to adopt, need not stand in the way of that redress......the order of the lower courts i proceed to dispose of it. in substance the petitioner's (judgment-debtor's) objection in the lower courts was that the decree-holder was proceeding to get his property brought to sale in the absence of a subsisting attachment and that this irregularity-should be stopped. the district munsif did not enter into the merits of the objection but held that the form of the petitioner's-application (e.a. 72 of 1925) which in terms asked that another application e.p. 543 of 1923 should be dismissed was obnoxious to rules 67 and 176, civil rules of practice, which forbid applications with that form of prayer. he was also of opinion that the objection did not fall within section 47, civil p.c, as it related only to procedure and not to the rights of the parties. on.....
Judgment:

Pan Dalal, J.

1. This is a second appeal by the judgment-debtor whose application E.A. 72 of 1925 dated 15th January 1925 praying that the decree-holder's execution application E.P. 543 of 1923 dated 7th December 1923 in execution of the decree in O.S. No. 676 of 1922 should be dismissed was itself dismissed by both the lower Courts. A preliminary objection to the second appeal was taken that no second appeal lies under Section 102, Civil P. C, as the decree in O.S. No. 676 of 1922 was of a small cause nature and the value of the subject-matter was less than Rs. 500. The appellant's advocate does not contest this objection which must prevail.

2. As he has also filed a revision petition against the order of the lower Courts I proceed to dispose of it. In substance the petitioner's (judgment-debtor's) objection in the lower Courts was that the decree-holder was proceeding to get his property brought to sale in the absence of a subsisting attachment and that this irregularity-should be stopped. The District Munsif did not enter into the merits of the objection but held that the form of the petitioner's-application (E.A. 72 of 1925) which in terms asked that another application E.P. 543 of 1923 should be dismissed was obnoxious to Rules 67 and 176, Civil Rules of Practice, which forbid applications with that form of prayer. He was also of opinion that the objection did not fall within Section 47, Civil P.C, as it related only to procedure and not to the rights of the parties. On appeal the learned Subordinate Judge upheld the Munsiff's order but supported it on additional grounds, i.e., that the question of attachment or no attachment was res judicata and that the petitioner was estopped by his conduct from raising it.

3. As to the formal objections based on Rules 67 and 176, Civil Rules of Practice, there is a substantive grievance raised by the petition and if it is true the fact that its redress was not sought in more act language than that adopted, which was perfectly easy to adopt, need not stand in the way of that redress. Then as to the point that the objection was not one cognizable under Section 47, Civil P. C, it is ingenious but unsound.

4. What is said is that insisting on proper procedure being adopted for selling property in execution is raising a question not relating to execution, discharge or satisfaction of the decree; but only to procedure. The answer is that an objection at) to the defect or absence of the necessary attachment of the property sold in execution comes within 'the provisions of Section 47: Ma Pwa v. Mahomed Thambi A.I.R. 1924 Rang. 124.

5. The substantive grounds of res judicata and estoppel remain. To understand how these arise the following facts and dates are necessary. The decree was passed on 8th December 1923. In pursuance of an application for execution E.P. No. 434 of 1923 certain properties of the judgment-debtor were actually attached on 5th August 1923. In spite of this, the judgment-debtor on 10th August 1923 executed a mortgage of the attached property which would be invalid against all claims enforceable under that attachment (Section 64). On 17th September 1923 the decree-holder applied for sale of the attached properties and the matter was posted for 1st December 1923 for filing sale papers and encumbrance certificate. As those papers were not filed the Munsif on that day dismissed the application but added 'attachment to be pending for two months.' Under Order 21, Rule 57 the Court could in such circumstances have adjourned the application if it thought that dismissal of the application was too severe a penalty for not producing the papers. But if the Court found it unable to proceed on account of the decree-holder's default and was unwilling to adjourn the matter and dismissed the application, the legal consequence was that the attachment ceased to exist, in spite of the order that it should remain in force Namuna Bibi v. Rosha Miah [1911] 38 Cal. 482.

6. I cannot help thinking that the Munsif passed the order in December dismissing the application as he had to show its disposal before the end of the year but purported to keep the attachment alive for a fresh petition till next years a kind of compensation for not adjourning the application which, if he had not been afraid of statistics, he would have done. All the subsequent disputes are due to this order. On 7th December 1923 the decree-holder applied again by E.P. 543 of 1923 for sale on the footing that the attachment was subsisting. The notice required by Order 21, Rule 66 for settling the proclamation was served personally on the judgment-debtor on 11th January 1924. He did not attend at the settlement of the proclamation. An order for sale was made on 8th September 1924 fixing the sale for 17th November 1924. On that day the petitioner (judgment-debtor) appeared and filed an application (E.A. 2642 of 1924) praying for adjournment of the sale for one month undertaking to pay up the decree amount in the interval and agreeing to the sale being conducted without a fresh proclamation. The decree-holder consented to the adjournment on these terms and the sale was adjourned to 22nd December 1924. Before the latter date the mortgagee under the mortgage of 10th August 1923 filed a claim petition owing to the pendency of which the sale was not held on 22nd December 1924. The claim was dismissed and the mortgagee has filed a regular suit which is said to be pending. On 15th-January 1925 the present application E.A. No. 72 of 1925 was filed by the petitioner setting out that the sale proceedings were incompetent as the attachment had ceased by the order of 1st December 1923 and that the sale should not be held without a fresh attachment.

7. The learned Subordinate Judge has held: (1) that the objection that there was no attachment should have been raised by the judgment-debtor in answer to the notice to settle the proclamation which was served on him and not having been so raised it must by the doctrine of constructive res judicata be deemed to have been decided against him when the order for sale was made on 8th September 1924 and (2) that in any case by his application of 17th November 1924 by which he consented in consideration of the sale being adjourned to have the sale conducted without a fresh proclamation he had waived all objections to the sale and affirmed the regularity and validity of the previous proceedings and cannot be now permitted to reprobate them. As to the state of knowledge in which the application for adjournment of sale was made by the petitioner the learned Subordinate Judge says that having regard to his conduct as could be gathered from the record both prior and subsequent to the previous execution petition it is very unlikely that he would not have become aware of the dismissal thereof and of the direction for sale in the present execution petition without fresh attachment.

8. The question is whether on the above facts and findings the petitioner can invoke the revisional power of this Court on the ground of want of jurisdiction illegality or material irregularity. Taking the question of waiver first the advocate for the petitioner admitted that if the objection of want of attachment was an irregularity which the judgment-debtor could waive, he could not say that his client had not waived it. But he contended that attachment in such a fundamental requisite of Court sale that the judgment-debtor could not by his consent waive it. He admitted that if a sale is actually held and there it is found that there was no valid attachment, the absence of attachment alone is not sufficient to vitiate the sale and may be condoned: Ma Pwa v. Mahomed Thambi A.I.R. 1924 Rang. 124 (of 1 Bang ); $heodhyan v. Bholanath [1899] 21 All. 311, Kishory Mohun Roy v. Mahomed Mujaffar Hussain [1891] 18 Cal. 188, Muthiah Chetty v. Palaniappa Chetty A.I.R. 1922 Mad. 447, Sivakolandai Pillai v. Ganapathi Ayyar [1917] M.W.N. 89, Velayuda Mooppan v. Subramania Chetti : (1913)24MLJ70 , Subramania Ayyar v. Krishna Ayyar A.I.R. 1926 Mad. 211. But ac-' cording to him if the absence of attachment is brought to light before the sale, then even consent of the judgment-debtor cannot cure the omission. He relies on Sasirama Kumari v. Meharbhan Khan [1911] 13 C.L.J. 243. There was no question in that case of consent or waiver at all. In fact the judgment debtor consistently denied the decree-holder's contention' that the attachment before judgment could survive the dismissal of the suit or could be revived by the reversal of that decree and the question was merely whether the error being brought to light before the sale, it should not be-rectified by ordering a fresh attachment. That is no authority in favour of the petitioner's contention that everafter affirming the proclamation proceedings by getting the sale adjourned and agreeing to the sale on the adjourned date without fresh proclamation, he can go back on that and set up the want of attachment of which according to the Sub-Judge he must have had previous knowledge. In Kumara Goundan v. Thevaraya Reddi A.I.R. 1925 Mad. 1113, there was no sale. But as in this case a previous execution petition had been dismissed after a claim petition arising upon the attachment in pursuance of that petition was dismissed. Then another execution petition was filed in which an order was made for a fresh proclamation, though the attachment had ceased by the order dismissing the previous petition. The effect of this order is thus stated at p. 619:

Though a fresh order in E.P. 196 of 1916 was taken without a fresh attachment and is final and binding between the decree-holder and judgment-debtor and cannot be questioned on account of want of attachment etc.

9. Attachment of property is in normal execution procedure an essential prerequisite of Court sales-O. 21, Rule 64 makes this clear. What is sold is the attached property. Where one property is attached, another property cannot be sold: Thakur Burmha v. Jiban Ram Marwari [1914] 41 Cal. 590. Attachment is a fact from which certain important results follow which would' not follow if the attachment was not actually and in fact effected: Muthiah Chetty v. Palaniappa Chetty A.I.R. 1928 P.C. 139. It is indisputable also that in this case the attachment which was effected on 5th August 1923 ceased by operation of law on 1st December 1923. All this, however, does not conclude the question why if absence of attachment is after a sale a mere irregularity which by itself is not sufficient to invalidate the sale, it should be before the sale more than a legal requirement which the judgment-debtor might so far as he is concerned waive. I am not concerned hero with the effect of absence of attachment on other parties who have dealt in the property meanwhile with the judgment-debtor. But I can see no reason why a judgment-debtor should not himself be bound if with full knowledge of his rights he says to the decree-holder;

I know that I have the right to insist on your attaching my property again. But I do not want that you should do so. It will only involve more trouble and delay to you and expanse to me. I am prepared to pay your debt if you will agree to a postponement of this sale for a month and in consideration I agree that you may live the sale held on the adjourned date without a fresh proclamation in case I do not pay up before and I will not raise any question of want of fresh attachment.

10. The general rule is that parties may waive the advantage of provisions made to protect their own interest but not of those made to protect the interest of others or of the public. I am of opinion that so far as the petitioner's interests are concerned there was nothing to prevent him waiving the requirement of a fresh attachment and he having done so with knowledge of the facts and obtained an advantage to the prejudice of the decree-.holder cannot now be permitted to resile from that position.

11. In view of the above opinion it is not necessary to go into the question whether the petitioner's objection is barred by constructive res judicata. But as it was argued I will briefly deal with it. The question on the authorities depends on whether the objection of absence of attachment was one which the petitioner should have urged in answer to the notice which was personally served on him to settle the proclamation: see Raja of Ramnad v. Velusami Tevar A.I.R. 1921 P.C. 23; Mungal Prasad v. Girija Kant [1881] 8 Cal. 51. That depends on the object and purpose of settling proclamation and the kind of question which the judgment-debtor who is notified is entitled to raise at that stage and therefore should raise. In Chidambaram Chetti v. Theivani Ammal A.I.R. 1924 Mad. 1 it was held that the objection that the property intended to be sold belonged not to the deceased judgment-debtor but to his legal representative who had bean brought on the record without notice to him was not a question which could or should have been raised at the settlement of the proclamation of which the legal representative had notice but at which he did not attend. The petitioner's contention is that the objection that there was no valid attachment is a similar objection though attachment is a necessary step before the proclamation can legally issue. In the Full Bench decision above referred to, the learned Chief Justice expressly said that the decision must be taken to be limited to the facts of that case (p. 780 of 46 Mad). That decision is therefore useful only as an illustration of the general principle. That principle is stated in Subramania Ayyar v. Rajeswara Sethuputhi [1917] 40 Mad. 1016 to be that the party who is sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contention against such a decision. Whatever may be said about such questions as ownership of particular properties sought to be made liable for the decree, I find it difficult to; say that a question necessarily involved in making an order for sale, fixing a day for it and settling the terms of the proclamation is not the fact that the, property intended to be sold had been attached, that being according to law the legal pre-requisite of sale. If therefore a question as to the attachment i.e., that no attachment subsists is available to the judgment-debtor, it seems reasonable to hold, that the notice of settlement of the proclamation gives him the opportunity of putting it forward and that if he wishes to do so, must do so then and not reserve it to a later occasion, which course will only make further execution proceedings fu-tile if the objection succeeds. The only consideration which makes me hesitate is the decision in Sivagami Achi v. Subramania Ayyar [1904] 27 Mad. 259, where it was held that what takes place at 'the settlement of proclamation is of an administrative character and not judicial. But though the proceedings so far as they relate only to settling the terms of the proclamation such as fixing a date, or upset price, arranging the lots etc. may be administrative and this was all that was decided, that occasion may reasonable and ought in my opinion to be held to furnish an opportunity to the judgment-debtor to raise his objection, if any, to the attachment. In the absence of any direct authority on the point, I can only say that I am inclined to uphold the view of the Subordinate Judge.

12. The second appeal and the revision petition are dismissed with costs. Advocate fees one set.


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