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Natarajan Vs. Chandmull Amarchand by Power-of-attorney, K. Milopchand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Reported in(1971)1MLJ474
AppellantNatarajan
RespondentChandmull Amarchand by Power-of-attorney, K. Milopchand and anr.
Cases ReferredJagannath v. Perumal Naidu
Excerpt:
- - 10,000. no petition was filed to set aside the sale and the sale was confirmed on 1st december, 1962. since the decree was not fully satisfied, the decree-holder filed e. on the other hand, it is clearly anterior to both these processes. 19. it may be mentioned that the learned judges, after overruling the preliminary objection, had called for a finding, whether the failure to give notice under order 21, rule 66 was due to fraud on the part of the decree-holder or was due to the inadvertence on the part of the executing court. 809. that shows clearly that notice under order 21, rule 22, had been served and we have also satisfied ourselves on this point by looking into the original records ourselves.k.s. venkataraman, j.1. these two appeals are against a common order dated 14th november, 1966 of the learned subordinate judge of the nilgiris, in proceedings in execution of the decree in o.s. no. 167 of 1955. the respondent-firm, chandmull amarchand, obtained a decree on 7th november, 1956 in o.s. no. 167 of 1955 on a number of promissory notes executed jointly by j.m. thippa gowder, k. petha maistry and b. gujja gowder. the claim was barred against petha maistry and he died before the suit. thippa gowder also died before the suit. the suit was filed against one j.t. joghee, the son of j.m. thippa gowder, in his capacity as manager of the joint family. joghee was impleaded as the first defendant and gujja gowder as the second defendant. the decree was against b. gujja gowder personally.....
Judgment:

K.S. Venkataraman, J.

1. These two appeals are against a common order dated 14th November, 1966 of the learned Subordinate Judge of The Nilgiris, in proceedings in execution of the decree in O.S. No. 167 of 1955. The respondent-firm, Chandmull Amarchand, obtained a decree on 7th November, 1956 in O.S. No. 167 of 1955 on a number of promissory notes executed jointly by J.M. Thippa Gowder, K. Petha Maistry and B. Gujja Gowder. The claim was barred against Petha Maistry and he died before the suit. Thippa Gowder also died before the suit. The suit was filed against one J.T. Joghee, the son of J.M. Thippa Gowder, in his capacity as manager of the joint family. Joghee was impleaded as the first defendant and Gujja Gowder as the second defendant. The decree was against B. Gujja Gowder personally and against the assets of J.M. Thippa Gowder in the hands of J.T. Joghee and the joint family. The decree was for Rs. 21,000 odd. E.P. No. 113 of 1960 was filed on 12th October, 1959 for impleading the legal representatives of Gujja Gowder. The petition was dismissed on 14th June, 1960. Then E.P. No. 763 of 1961 was filed on 5th October, 1961 and dismissed on 31st August, 1962 in view of E.P. No. 494 of 1962 which was filed on that day. In E.P. No. 494 of 1962 certain properties of the joint family of Joghee Gowder, his younger brother Natarajan and their mother Keppiammal, were sold on 29th October, 1962,and were purchased by the decree-holder, for Rs. 10,000. No petition was filed to set aside the sale and the sale was confirmed on 1st December, 1962. Since the decree was not fully satisfied, the decree-holder filed E.P. No. 721 of 1964. Natarajan and Keppiammal filed an application on 18th February, 1965, E.A. No. 76 of 1965, under Section 47 and 151 of the Civil Procedure Code to dismiss E.P. No. 721 of 1964. They filed E.A. No. 109 of 1965 on 19th March, 1965, under Sections 47 and 151 Civil Procedure Code to set aside the sale held on 29th October, 1962. These applications were dismissed by a common order dated 14th November, 1966. A.A.O. No. 95 of 1967 is against the order dismissing E.A. No. 109 of 1965 and A.A. O. No. 117 of 1967 is the appeal against the order dismissing E.A. No. 76 of 1965. The appeals have been heard together.

2. The grounds taken in E.A. Nos. 76 and 109 of 1965 are common and are two-fold : (i) No notice was given to the appellants Natarajan and Keppiammal, though the respondent (decree-holder) knew that J.T. Joghee was not the joint family manager and was living apart from the appellants and was inimical towards them. There was collusion between Joghee and the decree-holder, (ii) The deceased Thippa Gowder led a reckless and immoral life and the debts which resulted in the decree were tainted by immorality.

3. The learned Judge repelled these contentions on a careful analysis of the evidence adduced before him. He found that Joghee was the manager of the joint family and that the debts were not tainted by immorality. He also found that there was no collusion. Mr. R. Desikan and Mr. P. Bhaskaran, the learned Counsel who appeared for the appellants before us, were not able to urge anything to show that the reasoning of the learned Subordinate Judge was wrong on these aspects. There is, however, one other aspect on which they are entitled to succeed. We shall confine ourselves for the present to the sale held on 29th October, 1962 in E.P. No. 494 of 1962. It will be noted that one of the contentions is that no notice of the execution was ever given to them. The reply of the decree-holder is that notice went to the joint family manager, J.T. Joghee, and that that was sufficient. If, in truth, notice had been properly served on J.T. Joghee, the reply of the the decree-holder would be a sufficient answer to the contention of the appellants. But we find that that is not so. Taking up the first execution petition, E.P. No. 113 of 1960, it was filed for attachment and sale of the immovable properties in the hands of the legal representatives of the deceased second defendant, Gujja Gowder, whose legal representatives were sought to be impleaded as respondents 2 to 5. We are not now concerned with that prayer. The other prayer was for attachment and sale of the immovable properties belonging to the deceased Thippa Gowder 'now in the hands of the first respondent (J.T. Joghee Gowder) as the joint family manager of Thippa Gowder's family.' On 5th February, 1960, notice was ordered to be issued for the hearing on 15th March, 1960. We find that notice was issued to J.T. Joghee Gowder on 4th March, 1960. There is a postal acknowledgment among other things. The entry of the clerk on 15th March, 1960 was, 'J.D. 1 and L.Rs. of J.D. 2 sought to be impleaded as respondents. Notice served.' The endorsement of the Judge is 'J.D. 1 called absent. N.L. for other J.Ds. counter 23rd March, 1960'. On 23rd March, 1960, there was no Judge and it was reposted to 14th June, 1960. On 14th June, 1960, the endorsement of the Judge is 'No counter.' L.Rs. impleaded, petition dismissed.' The entry on 15th March, 1960, and the postal acknowledgment show that J.T. Joghee was served. Hence it may be taken that in E.P. No. 113 of 1960 notice was served on J.T. Joghee, but he was absent.

4. Then we come to the next execution petition, E.P. No. 763 of 1961. It was for attachment and sale of the properties mentioned in the Schedule to the execution petition. The person against whom enforcement of the decree was sought was mentioned as the first defendant, J.T. Joghee, son of Thippa Gowder. The execution petition was filed on 5th October, 1961. Because it was within two years of the order on the prior execution petition, 14th June, 1960, no notice was necessary under Order 21, Rule 22 of the Civil Procedure Code, because of the proviso. The fact that it was within two years of 14th June, 1960, was noted by the clerk. Hence straightaway an order for attachment was passed by the Judge on 7th October, 1961. The next entry dated 2oth November, 1961, is 'Immovables attached on 31st October, 1961. Valued at Rs. 25,000. Sale papers 30th November, 1961.' The time was extended for the filing of sale papers, and the sale papers were filed and there was the following endorsement of the clerk on 12th December, 1961 : 'Sale papers checked. Sale notice 9th January, 1962.' Then there is the following entry on 9tb January, 1962 : 'Batta memo, represented with a delay excuse petition. Issue 31st January, 1962.' Then on 31st January, 1962, the clerk put up the following note : 'Respondent not served,' and this is followed by an entry of the Judge, 'Respondent absent. Settlement on 3rd February, 1962,' the terms of proclamation were settled on 3rd February, 1962, with the order 'Proclaim and sell on 2nd April, 1962'.

5. The sale was again fixed for 13th August, 1962, with an upset price of Rs. 20,000 but there was no bid. The decree-holder filed E.P. No. 494 of 1962 and E.P. No. 763 of 1961 was therefore closed on 31st August, 1962. The clerk noted that it was filed within two years of the date of the order in the previous execution petition, E.P. No. 763 of 1961, namely 31st August, 1962, and hence straightaway the Court made an order on 21st August, 1962 'proclaim and sell on 29th October, 1962,' with an upset price of Rs. 10,000. The property was sold on 29th October, 1962 for Rs. 10,000 and Milapchand, the power-of-attorney agent of the decree-holder, was the bidder. There was no petition to set aside the sale and the sale was confirmed on 1st December, 1962.

6. Thus it is clear that no notice was actually served on J.T. Joghee before the sale was held. It was, however, brought to our notice by Mr. V.V. Raghavan for the decree-holder (Respondent) that J.T. Joghee had knowledge of the sale proclamation in E.P. No. 763 of 1961 and he drew our attention to the signature of J.T. Joghee, dated 21st February, 1962, below the return of the process server, dated 21st February, 1962, that he had made a torn torn in the village of the fact that the sale of the property would be held on 2nd April, 1962 and had also affixed a copy of the sale proclamation on the land. Some other persons also had signed above J.T. Joghee in support of that endorsement. It may be taken, therefore, that, though no notice under Order 21, Rule 64, or Rule 66 went to J.T. Joghee, he had knowledge on 21st February, 1962, that the sale was going to be held on 2nd April, 1962. But, as we shall see later, this will not help the decree-holder materially.

7. Order 21, Rule 92, Civil Procedure Code, says that where no application is made under Rules 89, 90 or 91 or where such an application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Sub-rule (3) says that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. Now, the appellants did not admittedly file any application under Rule 89 or 90. An application under Rule 90 would be to set aside a sale on the ground of material irregularity or fraud in publishing or conducting it. It had to be filed within thirty days of the date of the sale under Article 166 of the Limitation Act, 1908. Further the appellants could succeed only by proving that they sustained a substantial injury by reason of such irregularity or fraud. Hence, if E.A. No. 109 of 1965 is to be held to be really one under Order 21, Rule 90, it would have to be dismissed, because it was not filed within time, and, further, no substantial injury has been shown. But E.A. No. 109 of 1965 cannot be considered to be an application 'under Order 21, Rule 90. That rule would apply only where a sale is sought to be set aside on the ground of material irregularity or fraud in publishing or conducting it. Now, as we shall see presently, the want of notice under Order 21, Rule, 64 or 66 is a stage anterior to the publication of the proclamation of sale under Rule 67 or conducting the sale, and, therefore, it will not fall under Order 21, Rule 90. The application would, however, fall under Section 47, Civil Procedure Code, and the residuary Article 181 of the Limitation Act, 1908, prescribing a period of three years from the time when the right to apply accrues, and the corresponding Article 137 of the new Limitation Act of 1963. Where the application does not fall under Order 21, Rule 90, it is not necessary for the applicants to show that they sustained a substantial injury by reason of the non-observance of the prescribed procedure. Thus, both from the point of view of limitation and the absence of the need to establish substantial injury, it is necessary to realise that the application of the appellants would not fall under Order 21, Rule 90.

8. Before discussing the several decisions on the question, it will be convenient to refer briefly to the statutory provisions. Order 21, Rule 22 (so far as is relevant) says that, where an application for execution is made more than two years after the date of the decree, the Court shall issue a notice to the person against whom execution is applied for requiring to show cause, on a date to be fixed, why the decree should not be executed against him. There is a proviso which says, 'provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution, if the application is made within two years from the date of the last order against the party against whom execution is applied for made on any previous application for execution.' In passing, it may be noted as settled law that where notice is necessary under Order 21, Rule 22 and such a notice has not been issued, the Court has no jurisdiction to proceed with the execution. Vide Raghunath Das v. Sundar Das (1916) I.L.R. 43 Cal. 72 (P.C.), Rajagopala Ayyar v. Ramanujachariar : AIR1924Mad431 .

9. The attachment which was effected in E.P. No. 763 of 1961 without notice could not be objected to as invalid, but when we come to the sale there were two statutory provisions, Order 21, Rules 64 and 66. We may state that these rules were amended in Madras by amendments notified at page 121 of the Fort St. George Gazette, dated 10th April, 1963. Hence, so far as E.P. No. 763 of 1961 was concerned, we are governed by the provisions of the rules before the amendment. The rules before the amendment read thus:

Rule 64 : Any Court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.

Rule 66 (1) : Where any property is ordered to be sold by public auction in execution of a decree the Court shall cause a prolcamation of the intended sale to be drawn up in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and shall state the time and place of sale, and specify as accurately as possible-

(a) the property to be sold;

((b) to (e) omitted).

(f) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

Rule 67(1) : Every proclamation shall be published, as nearly as may be, in the manner prescribed by Rule 54, Sub-rule (2).

(Rest omitted).

For the sake of information we may notice that after the amendment effected on 10th April, 1963, Rule 64 reads:

Any Court executing a decree may, after notice to the decree-holder and the judgment-debtor, order...(Rest is the same).

Rule 66 (1) : There is no amendment.

The amendment of Rule 66(2), so far as we are concerned, was this:

The terms of such proclamation shall be settled in Court after notice to the decree-holder and the judgment-debtor, except where notices have already been issued under Order 21, Rule 64....

(Rest omitted).

10. Now, though in Rule 64 before the amendment in 1963 the words 'after notice to the decree-holder and the judgment-debtor' were not there, it is clear from first principles that such a notice was necessary, particularly in a case where no previous notice under Order 21, Rule 22 was necessary in view of the fact that the execution petition was filed within two years of the order against the judgment-debtor on the previous execution petition. It is very important that the judgment-debtor should know that his property is going to be sold, and, if his property is ordered to be sold without notice to him, it would be most unjust and unfair to him, and it could, indeed, be said that the sale without such notice is a nullity. Though there were no words specifically prescribing notice to the judgment-debtor in Rule 64 as it stood before the amendment of 10th April, 1963, it is a necessary implication from first principles that, before ordering that any property attached shall be sold, notice should go to the judgment-debtor, particularly in a case where notice had not already gone to him under Order 21, Rule 22, because of the proviso to that rule. The necessity for such a notice is no doubt made clear by the amendment of 10th April, 1963, but that was necessarily implicit even in the rule as it originally stood. It may be noted that even in the rules as they stood originally notice to the judgment-debtor was contemplated in Rule 66, and the wording was 'such proclamation shall be drawn up after notice to the decree-holder and judgment debtor.' It will be seen that Form 27 of Appendix E in the First Schedule to the Civil Procedure Code, contained the prescribed form of notice of sale under Order 21, Rule 64, and was:

To the judgment-debtor:

Whereas in the abovenamed suit..the decree-holder has applied for the sale of you are hereby informed that... (date) has been fixed for settling the terms of the proclamation of sale.

Form 28-A, entitled 'Notice of the day fixed for settling a sale proclamation' was in the same terms. Because the notices were in the, same form, the prevalent practice in the executing Court was to issue a single notice without specifically mentioning Order 21, Rule 64 or Rule 66. So long as a notice was issued and it was served on the judgment-debtor, it would have been sufficient compliance with the law for the purpose of Rules 64 and 66.

11. After the hearing was over, we opened the cover sent by registered post by the executing Court to J.T. Joghee for the proposed hearing on 31st January, 1962. We did this in order to satisfy ourselves. The form of the notice is merely:

Whereas in the above suit the decree-holder has applied for sale of the property attached, you are hereby informed that the same is posted to 31st day of January, 1962, for setting the terms of the proclamation of sale.

O.S. No. 167 of 1955, E.P. No. 763 of 1961 and other particulars are mentioned. There is no reference to Rule 64 or Rule 66. But if the notice had been served, there would have been sufficient compliance with law. But the fact remains that without notice, the execution petition was adjourned to 3rd Februry, 1962 and on 3rd February, 1962 the terms of the proclamation were settled and the order for sale was made. Thus the provision [for notice under Order 21, Rules 64 and 66 was not complied with, and, in our opinion, the sale was without jurisdiction. Mr. V.V. Raghavan has urged that the sale cannot be said to be without jurisdiction so far as the 1/3 share of Joghee was concerned, because he has not filed an application under Section 47, Civil Procedure Code, for a declaration that the sale is not binding on him. Since under Order 21, Rule 92 (3) he cannot file a suit and he has to file an application under Section 47, as pointed out by the Supreme Court in Ramanna v. Nallappa Raju : [1955]2SCR938 and since he has not filed such an application, we cannot give any declaration about the invalidity of the sale in respect of the 1/3 share of Joghee. But it is clear that the sale is not binding on the 2/3 share of the appellants, Natarajan and Keppiammal, and in the remaining discussion, if we say that the sale is void, we say so only for the limited purpose of giving relief to the appellants.

12. In Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, a Bench of this Court (Govinda Menon and Ramaswami, JJ.) held in circumstances similar to this case that a sale held without notice to the judgment-debtor under Order 21, Rules 64 and 66 was a nullity. There the previous execution petition, E.P. No. 1289 of 1933 was dismissed on 14th December, 1936, ordering continuance of the attachment. The next execution petition, E.P. No. 308 of 1937 was filed for the sale of the properties within two years (actually on 31st January, 1937). Hence no notice was necessary under Order 21, Rule 22. It was found that notice issued to the concerned judgment-debtors under Order 21, Rules 64 and 66 had not been served. The terms of the proclamation were settled and the order for sale was made without any such notice. The learned Judges observed:.the entire sale proclamation and the subsequent sales held in their absence should be deemed to be absolutely null and void ab initio, in which case the rights in the properties of defendants 3 and 6 have not passed to the purchaser at all.

Lower down they say:

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. In these circumstances we feel that since no notice of E.P. No. 308 of 1937 was ever given to defendants 3 and 6, the entire proceedings were ab initio null and void and the sale did not therefore convey any of their rights in favour of the purchaser.

This is a Bench decision and cannot be distinguished. It is therefore binding on us and even otherwise we are in respectful agreement with it.

13. The above decision was followed by Veeraswami, J., (as he then was) in Ramalingam Pillai v. Sankara Iyer : AIR1964Mad424 . There also, since the execution was filed within two years of the previous execution petition, notice under Order 21, Rule 22 was not necessary, and no notice under Order 21, Rule 66 was issued. The learned Judge held that, particularly where notice under Order 21, Rule 22 was not required and where the notice under Order 21, Rule 66 was the very first notice to go to the judgment-debtor, but such a notice was not issued, the sale held was a nullity. The learned Judge followed inter alia Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114. The report reads that the learned Judge thought that the decision in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, was a case where notice was necessary under Order 21, Rule 22. We think that Rule 22 is a mistake for Rule 64. The learned Judge also followed the decision of Panchapakesa Ayyar, J., in Karunakaran Nair v. Chathu : (1956)1MLJ47 . In that case no notice was necessary under Order 21, Rule 22. No notice went under Order 21, Rule 64 or Rule 66. But notice went to the judgment-debtor of the application of the decree-holder under Order 21, Rule 72, for permission to bid. Because he had such notice, the learned Judge held that, on the facts of that case, the objection of the judgment-debtor was without substance. The learned Judge observed, however, that in a case where the judgment-debtor did not know at all about the sale, the sale would be a nullity, and any knowledge about the sale or the sale proclamation after the sale was over, would not alter the matter. In this case no doubt we have seen that Joghee had notice on21stFebruary, 1962, of the sale proposed to be held on 2nd April, 1962 in E.P. No. 763 of 1961. In view of the clear observations of the Bench (Govinda Menon and Ramaswami, JJ.) in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, it seems to us that the subsequent knowledge would not validate the sale. However, it is sufficient to distinguish the decision of Panchapakesa Ayyar, J., by pointing out that we see from the entries in E.P. No. 763 of 1961 that the sale was not held on 2nd April, 1962, that there was an order for sale on 13th August, 1962, that on that date the sale was reposted to 30th August, 1962 and that, since there was no bid, the property was not sold, and the execution petition itself (E.P. No. 763 of 1961) was closed on 31st August, 1962. The sale which was eventually held was held in another execution petition (E.P. No. 494 of 1962) and no notice went in that execution petition under Order 21, Rule 66. Further, we would also point out that in A.A.A.O. No. 112 of 1968 (not yet reported) one of us held that sale held without notice under Order 21, Rule 66, was a nullity. That was a case of execution of a mortgage decree. The execution was within two years and therefore no notice under Order 21, Rule 22, was necessary and because the mortgage decree itself ordered sale, no further order for sale was necessary under Order 21, Rule 64. It was, therefore, emphasised that notice under Order 21, Rule 66, was all the more necessary. Besides the decisions in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, Ramalingam Pillai v. Sankara Iyer I.L.R. (1964) Mad. 370 : (1964) 2 M.L.J. 229, (Veeraswami, J.) and Karunakaran Nair v. Chathu : (1956)1MLJ47 , (Panchapakesa Ayyar, J.) reference was made to some other decisions, taking the same view namely, Narayan v. Ramchandra I.L.R. (1947) Nag. 794 : A.I.R. 1948, Dada Narayan v. Jaichand Nagorao : AIR1958Bom278 : a. and Prafulla Chandra v. Calcutta Credit Corporation A.I.R. 1965 Gua. 21.

14. No doubt there is a Full Bench decision of the Andhra Pradesh High Court in Satyanarayanamurthy v. Bhavanarayana I.L.R. (1957) A.P. 186 : (1957) 1 An.W.R. 233 : A.I.R. 1957 A.P. 185, where it was held that non-service of notice under Order 21, Rule 66(2) (as it stood before the amendment of 1963) was only an irregularity in publishing and conducting the sale, that it must be agitated under Order 21, Rule 90 showing that it had resulted in substantial injury to the judgment-debtor, and that the sale was not void. The learned Judges recognised that there were decisions of the Madras High Court to the contrary. In particular they referred to Neelu Meithiar v. Subramania Moothan (1920) 11 L.W. 59 : 53 Ind.Cas. 809 : A.I.R. 1920 Mad. 481. In that case there was an application by the judgment-debtor to set aside the sale on various grounds. He did not succeed in the Courts below, and he filed a second appeal. The question arose whether the second appeal was maintainable. If the ground for setting aside the sale was one under Order 21, Rule 90, there could be only one appeal against it as an order under Order 43, and no second appeal would lie. The learned Judges, however, observed that the second appeal would lie, their reasoning being this:

The application was by the judgment-debtor to set aside the sale on various grounds. Many of them would be covered by Order 21, Rule 90. There is one allegation at least which is outside its scope. That allegation is that no notice was given to defendants 5 and 23 as required by Rule 66, Order 21, before the proclamation was settled. It was suggested that this is a matter relating to the publication or the conduct of the sale. We do not agree with this contention. There are at least three stages contemplated by Rule 66. First the settlement of the proclamation, then its publication and lastly the conduct of the sale in pursuance of it. The first of these stages is not a matter connected with the publication or the conduct of the sale. On the other hand, it is clearly anterior to both these processes. Now comes the question, as this complaint against the sale is not covered by Section 90, whether a second appeal lies. It has been held in Anantharama Iyer v. Kuttimalu Kovilamma : (1916)30MLJ611 , a ground for setting aside a sale may be alleged de hors Rule 90, and that such an allegation would be covered by Section 47. It was contended by the learned vakil for the respondent that even if the application was within Section 47, if it can also be brought under Rule 90 of Order 21, there will be no second appeal by virtue of the prohibition contained in 104, Clause (2). Asimaddi Sheikh v. Sundari Bibi I.L.R.(1911) Cal. 339, and Sheo Prasad Singh v. Premna Kunwar I.L.R.(1918) All. 122, have taken this view. Anantharama Iyer v. Kuttimalu Kovilamma : (1916)30MLJ611 , impliedly accepts this principle. However that may be, we are clear that the ground of complaint relating to the violation of Rule 66 can only be considered under Section 47. Therefore there is an appeal and a second appeal against a decision relating thereto. We overrule the preliminary objection.

This view was followed in several other decisions. The learned Judges of the Andhra Pradesh High Court, however, differed from the above view, observing:

Now reading these two rules (Rules 66 and 67) together, while it is true that in one sense as pointed out in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 : A.I.R. 1920 Mad. 481, they represent two different stages, in the sale proceedings, one may observe that when Rule 90 refers to the 'publishing it', i.e., the sale, it refers to the publication of the proclamation of the sale drawn up under Rule 66. If the proclamation is not properly drawn up it cannot be said that there is a proper publication because it would be publication of an improper proclamation of sale. The publication of an irregularly drawn up proclamation of sale, irregular either because of want of notice or on other grounds, may thus be called an irregularity in the publication itself. It is clear that on the language of the rules quoted above, that the word 'proclamation' though it may, in ordinary parlance, also convey the meaning of publication, connotes in the above context only a piece of paper containing certain information prepared by the Court. If the paper is not properly drawn up, there is no proper publication of the sale.

Lower down it is observed:

In the result, my view is that, unless the matters alleged in an application for setting aside a sale are such that they would render the sale void (in which case no question of substantial injury could arise as the application falls under Section 47, it must come under Order 21, Rule 90, and can succeed only on proof of material violation of Rule 65 et seq followed by proof of consequential substantial injury to the applicant.

15. It may be mentioned that the question arose in the Andhra Pradesh High Court in connection with the validity of an order of the executing Court demanding security from the judgment-debtor under Order 21, Rule 90. One of the objections was the omission to issue notice under Order 21, Rule 66(2). The Full Bench confirmed the decision of the executing Court on that point. But, with regard to another objection, that the Court had no jurisdiction to sell the property outside its territorial limits, it was held that it was a matter under Section 47 and the petition was remanded to the executing Court on that question alone without requiring the judgment-debtor to furnish security.

16. We may point out that, besides the decision referred to in the judgment of the Andhra Pradesh High Court, a Bench of this Court (Govinda Menon and Panchapakesa Ayyar, JJ.) in Kandaswami v. Narasimha (1955) 1 M.L.J. 114, reiterated the view that the publishing of the sale refers only to what is antecedent to the actual conduct of the sale, but subsequent to the order directing the sale. We are bound by the decisions of this Court. We are also in respectful agreement with the reasoning of the decisions of this Court. Further, the decision of die Andhra Pradesh High Court does not refer to the decision of the Bench of this Court in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, and the principle laid down therein, namely:

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.

17. It is not clear from the decision of the Andhra Pradesh High Court whether there was any prior notice under Order 521, Rule 64. If there had been a notice under Order 21, Rule 64, and there was an order for sale, then it might be that the absence of a further notice under Order 21, Rule 66, would not make the sale void, but only voidable, and further, the application would fall under Order 21, Rule 90, and the same would have to be filed within the shorter period of thirty days prescribed by Article 166 of the Limitation Act of 1908 and the corresponding article 127 of the Limitation Act of 1963. From this point of view the decision of the Andhra Pradesh High Court could be distinguished, if necessary.

18. It is necessary again to refer to Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 : A.I.R. 1920 Mad. 481. There, though it was held that want of notice under Order 21, Rule 66 took the application out of the scope of Order 21, Rule 90, eventually it was held that srticle 166 of the Limitation Act of 1908 applied and, since the application was filed more than thirty days after the date of the sale, it was time-barred. At first blush this might give rise to an argument that the want of notice under Order 21, Rule 66, would only make the sale voidable and not void and, therefore, it would be necessary to set it aside by filing an application under Article 166 of the Limitation Act of 1908 within thirty days. But a closer examination of the facts in that case show that the learned Judges took that view because notice had been served under Order 21, Rule 22 and it was on that basis that they distinguished the decision of Shyam Mandal v. Satinath Banerjee I.L.R.(1917) Cal. 54. The relevant passage of the decision is this:

Lastly, it is urged that the sale is unsustainable on its merits, because owing to the absence of notice to the petitioners of the proceedings for framing proclamation it was held without jurisdiction and is a nullity. Shyam Mandal v. Satinath Banerjee I.L.R.(1917) Cal. 954, is referred to in this connection. But there the notice, absence of which was relied on, was one required by Order 21, Rule 22 and its issue was a condition precedent to the validity of any execution proceedings. 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. Taking this view we disallow this contention also.

19. It may be mentioned that the learned Judges, after overruling the preliminary objection, had called for a finding, whether the failure to give notice under Order 21, Rule 66 was due to fraud on the part of the decree-holder or was due to the inadvertence on the part of the executing Court. A full text of the finding is available in the report of the decision in Meelu Neithiar v. Subramania Moothan 11 L.W. 59 : 53 Ind.Cas. 809. That shows clearly that notice under Order 21, Rule 22, had been served and we have also satisfied ourselves on this point by looking into the original records ourselves. In the present case, however, it will be noticed that no notice under Order 21, Rule 22, was issued - because it was not necessary and there was only one single notice under Order 21, Rules 64 and 66 without mentioning the rules. Here, the principle enunciated in Jagannath v. Perumal Naidu (1955) 1 M.L.J. 114, would apply namely:

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.

That decision is binding on us and we are in respectful agreement with the principle laid down therein. Accordingly we hold that the sale held in E.P. No. 494 of 1962 on 29th October, 1962 is not binding on the 2/3 share of the appellants.

20. The appeal, A.A.O. No. 95 of 1967, is allowed to this extent. The parties will bear their own costs in both the Courts. In A.A.O. No. 117 of 1967, arising out of E.A. No. 76 of 1965, the sale has not yet taken place and Mr. V.V. Raghavan, the learned Counsel for the decree-holder, stated that the decree-holder would take out notices specifically to Natarajan and Keppiammal to avoid all controversy. In view of this assurance of the decree-holder, no further orders are necessary in the appeal.

21. These Appeals having been set down this day for being mentioned on the letter of the Advocate for Respondent-1, dated 25th September, 1970 upon hearing the arguments of Mr. K. Venkatasubba Raju for Mr. P. Bhaskaran, Advocate for the Appellant in both the Appeals and of Mr. V.V. Raghavan Advocate for the 1st Respondent in both the appeals, the Court delivered the following Judgment:

Venkataraman, J.

22. It is now brought to our notice by Thiru V.V. Raghavan, learned Counsel for the respondent-decree-holder that the mother Keppiammal had died even in June, 1965, itself when the petition before the learned Subordinate Judge was pending. On her death her one-third share devolved on her two sons Jughee Gowder and Natarajan, but the appeals to this Court were preferred only by Natarajan, Joghee did not prefer any appeal even in respect of the half share in the one-third share of Keppiammal, which devolved on him on her death. Accordingly the relief must be confined to the share of Natarajan alone, namely half share in the property which was sold in Court auction. In our earlier judgment we had overlooked the fact that Keppiammal had died even during the pendency of the proceedings in the lower Court. Accordingly we modify our judgment and decree by stating that the Court auction sale would not be binding on the half share of Natarajan.


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