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Subbarama Ayyar Vs. Chinnaswami Thanjirayar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad295
AppellantSubbarama Ayyar
RespondentChinnaswami Thanjirayar and ors.
Cases Referred and Somasundaram Chetty v. Subramaniam Chetty
Excerpt:
- - nor am i satisfied, as the lower court seems to? 5. this last sentence following immediately on the order granting the application seems to show clearly that the distribution of the rs. i am satisfied therefore that this part of the learned judge's order must be set aside and the petition allowed with costs......of the east tanjore district court and in execution thereof brought the properties of the judgment debtor to sale. the sale was fixed for 9th january 1931 and at the request of the judgment debtor was adjourned to 30th january 1931 to enable him to arrange for a private sale. it was further adjourned on that date at the request of the judgment debtor to 6th february 1931 on which date a third party who was present, respondent 1, namely, chinnasami thanjirayar, presented an application purporting to be under order 21, rule 69, civil p. c, asking for an adjournment on the ground that he was prepared to purchase and an order was passed on this:sale to go on from day to day till 13th february 1931 by which time the proposed purchaser chinnasami thanjirayar will pay into court rs. 2,000 to.....
Judgment:

Walsh, J.

1. The petitioner obtained a decree in O.S. No. 20 of 1929 on the file of the East Tanjore District Court and in execution thereof brought the properties of the judgment debtor to sale. The sale was fixed for 9th January 1931 and at the request of the judgment debtor was adjourned to 30th January 1931 to enable him to arrange for a private sale. It was further adjourned on that date at the request of the judgment debtor to 6th February 1931 on which date a third party who was present, respondent 1, namely, Chinnasami Thanjirayar, presented an application purporting to be under Order 21, Rule 69, Civil P. C, asking for an adjournment on the ground that he was prepared to purchase and an order was passed on this:

Sale to go on from day to day till 13th February 1931 by which time the proposed purchaser Chinnasami Thanjirayar will pay into Court Rs. 2,000 to show his bona iides.

2. On 13th February an order was passed that the sale was to go on from day to day till the 17th. On the 17th the following order was passed:

The sale adjourned to 24th April 1931 to enable the judgment debtor to effect private sale with a view to satisfy the creditor. If the sale is not completed by then, this amount of Rupees 2,000 will be forfeited. The question of distribution will be considered later.

3. Just above this order there is a note by the petition clerk : 'Rs. 2,000 deposited to the credit of O.S. No. 20 of 1929.' It may be noticed that by that time there had been some applications for rateable distribution put in by some decree-holders. On 24th April 1931 the sale was adjourned for one day more and on the 25fch Thanjirayar put in another application asking for further adjournment of a month. His petition was rejected. The Court sale was proceeded with and the decree holder bought the properties. Subsequently Thanjirayar presented Ex. B. A. 128 of 1931 for the return of Rs. 2,000. The decree holder had put in an application asking that the amount should be paid to himself and there was one other petitioner who asked for rateables. The learned Judge who heard the petition was not the Judge who had passed the order with respect to this Rs. 2,000. Nevertheless he held that the order of his predecessor was incompetent and passed order to refund this Rs. 2,000 to the present respondent 1 Thanjirayar. Against that order the present Civil Revision Petition has been filed. The first ground taken is that respondent 1 cannot attack the order and that there was no application for review or revision, and if there was one it could not be granted. The second ground taken is that having had the benefit of the order he cannot now say that it should be set aside particularly when the parties cannot now be placed in their original position.

4. Unfortunately defendant 1 is not represented before me either personally or by pleader but the facts have been very fully set forth by the learned Advocate for the petitioner and I am of the opinion that the order must be set aside on both the grounds. As regards the first ground, there is no application for review and if there were one Order 47, Rule 2 only empowers a Judge other than the one who passed the order sought to be reviewed to review it on two grounds, namely, the discovery of such new and important matter or evidence as is referred to in Order 47, Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree. Neither of these forms the ground for the present petition and I therefore hold on the first ground that the learned Judge had no power to review the order of his predecessor which had become final. I may however note some points in this connection. It is true that Order 21, Rule 69 does not specifically empower any, one but a party to the proceedings to make an application for adjournment. Still I am not clear that it forbids the Court to grant an adjournment on such an application. The rule is very general and says the Court may in its discretion adjourn any sale hereunder to a specified day and hour, and so far as I can see there is nothing to prevent the Court; adjourning it on information which it has from a third party or even at the request of a third party. Nor am I satisfied, as the lower Court seems to? suppose, that the Court has no power, under Rule 69 to impose terms for an adjournment, although the rule does not specifically say so; for instance with regard to Rule 69(2) it is a frequent condition where a sale is adjourned for more than 7 days at the request of the-judgment debtor that this should only be done if fresh proclamation is waived. Looking to Order 17, Rule (1) which governs the adjournment in suits, we also find that it contains no express terms by which conditions can be imposed and yet the power of the Court to-do so is frequently exorcised and is never questioned. The learned Judge himself admits that on one reading of the order it would be competent, and that is if it-be taken that Rs. 2,000 was deposited towards the decree amount. In dealing with this question he has not quoted the last sentence of the order of 17th February which seems to make the position clear. This order winds up thus:

If the sale is not completed by then, this amount of Rs. 2,000 will be forfeited. The question of distribution will be considered later.

5. This last sentence following immediately on the order granting the application seems to show clearly that the distribution of the Rs. 2,000 towards the decree amount is going to be considered. The order by saying that the sale is adjourned to 24th April 1931 to enable the judgment debtor to effect private sale shows that in fact the application by respondent 1 for adjournment was treated as an application by the judgment debtor. As regards the alleged illegality of the order, the Court had power to deal with the petition for adjournment of the sale, and even if an irregular condition was imposed both;, the parties submitted to it and it was; not challenged. Under' these circumstances, it is clear that the order must stand : vide Abdul Wahab Sahib v. Rokia Bibi 1924 Mad 406;. Ledgard v. Bull (1887) 9 All 191 and Tuljaram Row v. Gopala Ayyar 1918 Mad 1093. On the second branch of the argument, I agree that respondent 1 is estopped by his conduct from seeking to get the order set aside. He took advantage of the stay granted on these conditions and he cannot now be heard to say that the condition was illegal. In this connection the Privy Council case in Sadasiva Pillai v. Ramalinga Pillai (1876) 2 IA 219; Ambu Nair v. Kelu Nair 1933 PC 167 and Somasundaram Chetty v. Subramaniam Chetty 1926 PC 136 may be referred to. I am satisfied therefore that this part of the learned Judge's order must be set aside and the petition allowed with costs. With regard to the distribution of rateables, the learned District Judge only deals with it in the last paragraph:

I may add that I think it clear that if the Rs. 2,000 could be held by the Court, it would be an asset coming under Section 73 and liable to rateable distribution.

6. There are not however sufficient materials on the record in its present condition for me to pass final orders as regards distribution. In the result C.R.P. No. 1655 is allowed and E.A. No. 128 of 1931 is dismissed with costs throughout. O.E.P. No. 1654 is allowed with costs except vakil's fee and B. A. No. 1-27 of 1931 is remanded to the lower Court for disposal according to law. Vakil's fee one set. Costs in C.E.P. No. 1654 and 1655 to be paid by respondent 1.


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