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N. Subba Reddi and ors. Vs. P. Marga Sastriar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1929Mad517; 118Ind.Cas.818
AppellantN. Subba Reddi and ors.
RespondentP. Marga Sastriar
Cases ReferredTuljaram v. Ramachandra Row A.I.R.
Excerpt:
.....all about these proceedings and they have not been injured 'in the slightest, either by not being brought on as legal representatives in a formal manner, i suppose, in the heading of the sale proclamation, or by the sale 'being held on the 9th instead of on 5th. all the objections, therefore, fail and the second appeal must be dismissed with costs......1924. mad. 431, to the effect that if notice as required under order 21, rule 22, is not given, a sale held in execution of a decree is void as against the person to whom notice should have been but was not issued.5. it is obvious that the procedure under the madras estates land act relative to the sale of holdings which is contained in section 111 onwards is a summary procedure and to my mind it is not only a summary procedure but a self-contained procedure and as long as the provisions of the special act are not infringed, i do not think that the appellant has any locus standi in a suit of this character at any rate to impugn the sale. the objection, if it can be entertained at all, is entirely technical because the appellants themselves joined in the suit of their father no. 611 of.....
Judgment:

Odgers, J.

1. This is an appeal relating to the sale of a holding under the Madras Estates Land Act for an arrear of rent in fasli 1325 (1915) 13 years ago. The plaintiff was the sub-lessee of an estate called Janakrajukuppam from 1913 to 1918 from the permanent lessee. The properties in question belonged to defendant 1's father and on 9th July 1919 the plaintiff attached and brought the lands in respect of rent due for fasli 1325 as stated and purchased them himself. The plaintiff alleges that the defendants trespassed and took possession in 1922 and therefore asks for a declaration of his right in respect of the properties and for a direction for delivery of possession. The written statement sets out that the rent auction has become void because the plaintiff 'has taken out rent sale proceedings' against the defendant's father who died in 1917. The written statement then goes on to set out in detail the reasons why the rent auction was invalid 'in every way' and also fraudulent, the main contention being that there was no proclamation, it was a hushed up sale and that no auction took place in the village at all. There are various other contentions but none of them have been relied on in appeal before me. The District Munsif held that there had been

an abrogation of the provisions of the Estates Land Act as to proclamation and sale of holding

in this case and dismissed the plaintiff's suit. The Subordinate Judge reversed that decree and decreed the plaintiff's suit. Hence this second appeal.

3. Three points are taken, the first that after 1918 the plaintiff ceased to be a landholder under the Estates Land Act and Sundaram Ayyar v. Kulathu Ayyar [1916] 39 Mad. 1018, was referred to. The point, however, was not persisted in in view of the fact that these proceedings had commenced before the termination of the sub-lease to the plaintiff's father.

4. The next question argued was that no notice of the sale was given to the legal representatives of the lessee Muni Reddi as required by Order 21, Rule 22, Civil P.C. The learned advocate for the appellant also says that he is not obliged to bring a substantive suit to have the sale set aside but is entitled to succeed on his defence if it will show that the sale ought to be set aside. We have had a. very long argument on this and reliance has been placed chiefly on the Full Bench ruling in Rajagopala Iyer v. Ramanujachariar A.I.R. 1924. Mad. 431, to the effect that if notice as required under Order 21, Rule 22, is not given, a sale held in execution of a decree is void as against the person to whom notice should have been but was not issued.

5. It is obvious that the procedure under the Madras Estates Land Act relative to the sale of holdings which is contained in Section 111 onwards is a summary procedure and to my mind it is not only a summary procedure but a self-contained procedure and as long as the provisions of the special Act are not infringed, I do not think that the appellant has any locus standi in a suit of this character at any rate to impugn the sale. The objection, if it can be entertained at all, is entirely technical because the appellants themselves joined in the suit of their father No. 611 of 1917 under Section 112 contesting the right of sale which was fought up to the High Court and there lost by them. This is quite evident from Ex. E, in which the legal representatives ask for a stay of the auction sale from the Special Deputy Collector till they can obtain a stay order from the High Court. The affidavit in support is dated 18th June 1919 and Ex. A says that on 30th January 1917, the appellants, legal representatives of the tenant, received notice of attachment. Certain cases have beers-quoted: Ramasami v. Bhagirathi, which was a sale in execution of a decree which for this reason can be distinguished along with the case in Rajagopala-Iyer v. Ramanujachariar.

6. It may also be noted that in Ramasami v. Bhagirathi [1883] 6 Mad. 180, the judgment-debtor died after attachment; Groves v. Administrator General [1899] 22 Mad. 119, a sale was held while the estate of the judgment-debtor was entirely unrepresented and there was virtually an element of fraud in the sale. On the other hand, Brij Indar Singh v. Kanshi Ram A.I.R. 1917 P.C. 156 laid down that the introduction of a legal representative of a plaintiff or a defendant at one stage of the suit is sufficient and in Venkatachariar v. Ponnappa Aiyangar [1918] 7 M.L.W. 614, a legal representative who first appears on a memorandum of cross-objections was held to have appeared for the purposes of the appeal as well; in Midnapore Zamindari Co. Ltd. v. Muthappudayan A.I.R. 1921 Mad. 195, a defaulter includes the heir of a registered pattadar or a person whom the landholder is bound to recognize and in Kaliappa Nadar v. Muthuvijaya Thambayasami : AIR1927Mad984 . As regards Section 112 of the Act the heir stands in the shoes of the mortgagee and can bring a suit.

7. Jagannadha Charyulu v. Satyanarayana Vara Prasadha Rau [1920] 43 Mad. 351, is an authority for the proposition that Order 21 Rules 90 and 92 do not apply to sales under Section 111, Madras Estates Lund Act and it seems to me that on principle the same decision should be come to with regard to Order 21, Rule 22 in the case of summary procedure under the Madras Estates Land Act but an actual decision on the law is possibly not required in this case, for there was no application here for execution under Order 21, Rule 22 and on the facts there is no doubt as found by the learned Subordinate Judge on the only point that was really argued before him and to which I am about to refer that the sale was unquestionably within the knowledge of defendant 1.

8. Now I come to the third objection, that is, that the sale ought to have taken place on 5th July 1919, but in fact took place on 9th. That sale, says the Subordinate Judge, is the only question that arose on the appeal before him. The plaintiff was ill-advised enough under the circumstances of this case and with regard to its history to accept an undertaking from the pleader for defendant 1 in these terms:

I won't press for fresh proclamation. Time may be granted till 5th July 1919 so as to enable me to obtain a stay order from the High Court. of. Ex. E.

I consent to the sale being proceeded with on 55h July 1919 in continuation of the present proceedings it in the meanwhile no stay order is received from the High Court. Ex. E. 1.

9. The order of the Special Deputy Collector on the above petition was ' ordered accordingly,' and the Deputy Tahsildar was ordered to stop the sale by Ex. G : see p. 3 of the District Munsif's judgment. Now the point raised is that the consent of the pleader for defendant 1 was that the property should be sold on 5th July, and 5th July only and so various cases have been quoted such as Chedami Lal v. Amir Beg [1885] 7 All. 676, which was a sale in execution of a decree which took place at 7 a. m. although advertised for 11 a.m. Basharutulla v. Uma Charan Dutt [1889] 16 Cal. 791, where the sale took place at 10-30 instead of at 12 as advertised. There the plaintiff had arranged with his creditors to pay them the amount of the decree and thus render the sale unnecessary. When the plaintiff and his creditors arrived on the spot they found the property sold. There is no doubt there that it can be said that the plaintiff suffered material damage. There is no proof whatever here of any material injury to the defendants by the procedure adopted, although it is said as is usual in such cases that the plaintiff has thereby been able to obtain a valuable property at below its market value. On the other hand, in Ranga Lal Singh v. Raveneshwar Persad Singh [1912] 39 Cal. 26, the sale was advertised for 13th of a month, but the officer whose duty it was to conduct it was absent on that day and the monthly sales were not begun till 17th and the property in question was not sold till 20th. It was held that there was no substantial injury. Tnyeyagaraja Chettiar v. Sivapada Mudaly : (1911)21MLJ1008 , was a case under the Rent Recovery Act and an adjournment was held to be a mere irregularity and there was no substantial injury : cf. Tuljaram v. Ramachandra Row A.I.R. 1921 Mad. 484.

10. Now in this case the District Munsif thought that there was no consent to waive further proclamation in case the sale was held at any later date than 5th July. I do not agree. The obvious intention was to wait till 5th July to see if a stay order could be obtained from the High Court by that date. It is obviously impossible to sell the property at a moment's notice especially as in this case it is said that the Revenue Inspector lives 20 miles from the property which is situated 80 miles from the Collector's Office. It appears that in fact no application was made to the High Court for any stay and as pointed out by the learned Subordinate Judge if this was really a matter on which the defendants had a substantial ground of complaint by reason of material injury suffered by them, one would naturally expect to find it in the forefront of the written statement. There is no mention whatever in it of any adjourned sale or of any injury arising therefrom. As indicated at the beginning of this judgment; the defendant's case was that there was no sale whatever at any time and that the whole thing was bogus and fraudulent. If as the Subordinate Judge points out the defendants had pleaded and proved that the sale on 9th July was part of the fraud perpetrated by the plaintiff, that might have been another matter and might have entitled the defendants to bring a substantive suit to set aside the sale. Be that as it may, if I were satisfied that there be any real irregularity or failure to observe the summary rules contained in Section 112 (following) I should be the first to waive technical objections and I should not allow the plaintiff to succeed in the present suit. On the other hand, the objections taken by the defendants are in my opinion taken for the purpose of delay and are in themselves fraudulent. They knew perfectly well all about these proceedings and they have not been injured 'in the slightest, either by not being brought on as legal representatives in a formal manner, I suppose, in the heading of the sale proclamation, or by the sale 'being held on the 9th instead of on 5th. All the objections, therefore, fail and the second appeal must be dismissed with costs.


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