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Ammakutti Achi Vs. Doraiswami Aiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad140
AppellantAmmakutti Achi
RespondentDoraiswami Aiyar and anr.
Cases ReferredRajagopalayyar v. Ramanujachariar A.I.R.
Excerpt:
- - , to set aside the sale on the ground that the sale is bad because it took place contrary to the direction in the decree that it should take place in a certain order......last according to the decree. items 1 to 3 were sold in auction and then the appellant put in the present application under sections 47 and 151, civil p.c., to set aside the sale on the ground that the sale is bad because it took place contrary to the direction in the decree that it should take place in a certain order. the lower court held that the application is barred by limitation under article 166, limitation act, as it had been filed admittedly more than 30 days after the date of sale.2. it is argued that the sale in contravention of the directions in the decree amounts to an illegality, that it is, therefore, void ab initio and that the proper article applicable is article 181, limitation act, which prescribes a period of three years and not article 166. the question is whether.....
Judgment:

1. This is an appeal by defendant 4 against the appellate order passed by the District Judge by which he confirmed the District Munsif's order refusing to set aside a sale in the following circumstances. A mortgage decree directed that items 1 to 3 of the mortgaged properties should be sold last and that item 4 should be sold first. Items 1 to 3 belonged to the present appellant. As regards item 4 an order staying sale had been obtained by defendant 1's son from the District Court on proceedings taken in connexion with O.S. 119 of 1925 in which he claimed item 4 as his own and asked for an injunction restraining its sale. The appellant though she had notice of the sale did not inform the Court that her properties were to be sold last according to the decree. Items 1 to 3 were sold in auction and then the appellant put in the present application under Sections 47 and 151, Civil P.C., to set aside the sale on the ground that the sale is bad because it took place contrary to the direction in the decree that it should take place in a certain order. The lower Court held that the application is barred by limitation under Article 166, Limitation Act, as it had been filed admittedly more than 30 days after the date of sale.

2. It is argued that the sale in contravention of the directions in the decree amounts to an illegality, that it is, therefore, void ab initio and that the proper article applicable is Article 181, Limitation Act, which prescribes a period of three years and not Article 166. The question is Whether the sale in the present case is an illegality or a mere irregularity. In Muthiah Chettiar v. Bava Sahib : AIR1915Mad392 , Oldfield, J., held that where a sale took place contrary to the directions in the decree that it should take place in a certain order, the application to set aside the sale on that ground was one under Section 47, Civil P.C., and would be governed by Article 166. So far as we can see, there is nothing in Rajagopalayyar v. Ramanujachariar A.I.R. 1924 Mad. 431, which throws doubt on this decision. The observation of the learned Chief Justice:

I cannot agree with the view that all applications under Section 47, are governed by Article 166,

rather suggests that some applications under that section are certainly governed by that article. The present application though it was made under Section 47, was one to set aside a sale and is governed by Article 166, Limitation Act. We think the present tendency is to apply Article 166, to applications of this nature. The order of the lower Court is right and this appeal against appellate order is dismissed with costs.


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