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Nachimuthu Goundar and anr. Vs. Amaravathi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1975)1MLJ333
AppellantNachimuthu Goundar and anr.
RespondentAmaravathi
Cases Referred and Kanchamalai Pathar v. Sahaji Rajah Sahib
Excerpt:
- .....the courts.6. then there is the objection regarding; the misdescription of the property in the sale proclamation. according to the respondent, this misdescription has been deliberately effected with a view to undervalue the property that was being brought to sale. the evidence of p.w. 1, the karnam shows that lot no. 2 consists of survey nos. 414/1 to 414/4, that the total extent of these survey numbers comes to 11 acres 45 cents and there are as many as 315 coconut trees, 150 palmyrah trees and 125 arecanut trees in this property. in the sale proclamation the very existence of these trees has been suppressed. it is also found from the evidence that there is a five anganam shed in the property, the existence of which has also been suppressed from the sale proclamation. the evidence.....
Judgment:

S. Maharajan, J.

1. This Civil Miscellaneous Second Appeal arises under the following circumstances:

2. The second appellant purchased, under the hammer of Court, on 6th March, 1967 a particular property at a sale in execution of a decree obtained by the first appellant against one Karuppakkal in O. S. No. 1383 of 1964 on the file of the Principal District Munsif, Coimbatore. Sometime after the date of the decree, Karuppakkal died and the decree-holder filed E. P. No. 155 of 1966 praying that eight persons including Amaravathi, the respondent herein be impleaded as the legal representatives of Karuppakkal as respondents 2 to 9 in E. P. No. 155 of 1966, and that three lots of properties described in the E. P. be attached and brought to sale. Though all the three lots were attached, lot No. 2 alone was ultimately brought to sale. Two persons offered bids and the second appellant offered the highest bid of Rs. 11,000 and his bid was accepted and the auction knocked down in his favour. On the 26th of June, 1967, Amaravathi, who is the respondent herein and who was impleaded as the 6th respondent in the execution petition, filed a petition before the District Munsif of Coimbatore in E. A. No. 833 of 1967 under Section 47, Civil Procedure Code read with Section 17 of the Limitation Act, praying for a declaration that the Court sale of the property held on 6th March, 1967 was a nullity and for setting aside the same, if necessary. A number of grounds were urged in this petition for setting aside the sale. The executing Court held that the sale was vitiated by illegality as well as by a number of material irregularities relating to the publication and conduct of the sale which had resulted in substantial injury to the legal representatives of the judgment-debtor. Consequently the petition was allowed with costs. Against this order the appellants preferred C. M. A. No. 76 of 1969 on the file of the Additional District Judge, Coimbatore West. The first appellate Court agreed with most of conclusions of the Court of first instance and held that the Court auction sale dated 6th March, 1971 was void and a nullity and consequently dismissed the Civil Miscellaneous Appeal with costs. It is against the dismissal of the Civil Miscellaneous Appeal that the present Civil Miscellaneous Second Appeal has been preferred.

3. One preliminary objection taken by the appellants to the competency of the petition filed by the respondent under Section 47, Civil Procedure Code, may first be stated. According to the appellants, although the respondent Amaravathi is one of the legal representatives of Karuppakkal, she did not get any interest in lot No. 2, which was actually sold in execution of the decree. According to the appellants, lot No. 2 was bequeathed, by Karuppakkal under a registered will dated 2nd September, 1965 exclusively to one Palaniswami Gounder, who is the brother of Amaravathi. Even on the appellants' own showing, Amaravathi herein has also been bequeathed under the same will certain other properties belonging to the testatrix. The main contention of the appellant is that if, at all Palaniswami, the legatee of lot No. 2 under the will would alone be entitled to question the judicial sale of that lot and not any other legal representative of Karuppakkal. This is a contention, which was not raised either in the counter to the application filed by Amaravathi for setting aside the sale or even in the grounds of appeal preferred by the appellants before the first appellate Court. It is true that during the pendency of the Civil Miscellaneous Appeal the appellants filed an application for reception of the registered will executed by Karuppakkal and the first appellate Court directed the same to be received subject to relevancy and proof. It is not known why the appellants, after getting this favourable order, did not proceed to prove the will or its relevancy. Be it noted that the respondent herein questions the truth and validity of the will as well as the allegation that it was executed in a sound and disposing state of mind. In view of the denial by the respondent of the genuineness of the will, it is not possible for this Court to act upon the contents thereof. Learned Counsel for the appellants says that the matter may therefore be remanded to the Court below and a finding called for upon the genuineness of the will. I think it unnecessary to do so. Even assuming that the will is true and genuine, I fail to see how the mere fact that the will does not bequeath lot No. 2 in favour of Amaravathi would disentitle Amaravathi to institute a petition under Section 47, Civil Procedure Code to set aside the sale in question. It was at the instance of the appellants themselves that Amaravathi was impleaded as one of the 8 legal representatives of the deceased Karuppakkal, the original judgment-debtor. According to Section 2 (11), Civil Procedure Code, a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. It is admitted by the appellants themselves that under the disputed will Amaravathi has been given a legacy. She is, therefore, undoubtedly a legal representative of the deceased judgment-debtor. Under Order 21, rule go, where an immovable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court to set the sale aside on the ground of a material irregularity or fraud in publishing or conducting it. According to the learned Counsel for the appellants Amaravathi is not a person whose interests are affected by the sale of lot No. 2 and consequently she is not competent to maintain the petition to set aside a sale. This contention has to be rejected on two grounds. In the first place, by the sale) of any part of the estate of the deceased) judgment-debtor in execution of the decree the interest of everyone of the legal representatives of the judgment-debtor is affected directly or indirectly. Even assuming that such a broad construction ought not to be put upon the words ' whose interests are affected by the sale' occurring in Order 21, Rule 90, Civil Procedure Code, it must be remembered that the petition filed by Amaravathi was not one under Order 21, Rule 90 but was one under Section 47, Civil Procedure Code. Clause (1) of Section 47, prescribes that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The question raised by Amaravathi by means of her petition is certainly a question arising between a representative of the judgment-debtor, on the one hand, and the decree holder and the auction purchaser, both of whom were parties to the suit within the meaning of Explanation (1) to Section 47, on the other. The nature of the grounds raised by Amaravathi for attacking the judicial sale undoubtedly relate to the legality of the execution proceedings which culminated in the sale. There is nothing in Section 47, therefore, which restricts the benefit of that section to persons whose interests are affected by the sale. The very fact that she is a representative of the judgment-debtor and is there on record as a party to the execution petition enables her under Section 47 to raise any conceivable objection relating to the execution, discharge or satisfaction of the decree. I would therefore hold that Amaravathi being one of the legal representatives of the deceased judgment-debtor and having been impleaded by the appellants themselves as such, it is not open to the appellants to contend that she has no competency to raise by means of her petition any objection in relation to the execution, discharge or satisfaction of the decree. The preliminary objection is, therefore, overruled.

4. I shall next proceed to deal with the question whether the Court sale impugned is a nullity. Under Order 21, Rule 22 (1) (b) Civil Procedure Code, where an application for execution is made against the legal representative of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for, requiring him to show cause, on a date to be fixed why the decree should not be executed against him. It has been held that non-service of such a notice on the legal representative would go to the root of the jurisdiction of the Court and render the Court sale void. Vide Rajagopala Iyer v. Ramanujachariar : AIR1924Mad431 and Kanchamalai Pathar v. Sahaji Rajah Sahib : AIR1936Mad205 . In this case Amaravathi, who was examined as P.W. 2, contended that no notice under Order 21, Rule 22 was ever served upon her whereas the case of the appellants was that a notice was actually served upon her by post and Exhibit B-2 is the postal acknowledgment bearing the left thumb impression of Amaravathi. When Amaravathi was confronted with Exhibit B-2, she flatly denied that she had ever put her thumb impression thereto or received the notice under Order 21, Rule 22. The trial Court has referred to the fact that the postal endorsement on a similar cover sent to one Govindammal, one other legal representative was to the effect that she was dead, while she was actually alive even at the time when P.W. 2 was examined. One would expect the appellants to have examined the postman who purports to have obtained P.W. 1's thumb impression upon Exhibit B-2. Further, as Exhibit B-2 is said to bear the thumb impression of Amaravati, one would expect the appellants to have sent it to the fingerprint expert for scrutiny. The opinion of the fingerprint expert could certainly have-helped the Court in coming to a scientific conclusion as to the genuineness or falsity of the left thumb impression that is found? in Exhibit B-2. It is extraordinary that the appellants did not have Exhibit B-2 sent for scrutiny by the finger print expert. In these circumstances both the Courts below were right in concurrently holding that there is no proof that the execution proceedings culminating in the sale in. question were preceded by service upon the legal representatives of a notice under Order 21, Rule 22, which would be a necessary pre-condition to the legality of the Court sale.

5. As regards the sale notice, it is found from the records that Amaravathi was never personally served. But on the application of the decree-holder, substituted service was ordered by publication in the 'Malai Murasu '. Unfortunately the relevant issue of ' Malai Murasu' has not been exhibited. But the Court of first instance which has looked into it says that the address of Amaravathi was not given in that publication. P.W. 2 gave evidence to the effect that she was. residing at Perianegammam and not at Muttampalayam and that she never received any notice of sale. As regards the actual proclamation of sale, a number of discrepancies in the evidence of the decree-holder have been noted in para. 9 of the first Court's judgment. Both the Courts below have held that the proclamation has not been properly effected, and I see no reason to interfere with the concurrent findings of both the Courts.

6. Then there is the objection regarding; the misdescription of the property in the sale proclamation. According to the respondent, this misdescription has been deliberately effected with a view to undervalue the property that was being brought to sale. The evidence of P.W. 1, the Karnam shows that lot No. 2 consists of survey Nos. 414/1 to 414/4, that the total extent of these survey numbers comes to 11 acres 45 cents and there are as many as 315 coconut trees, 150 palmyrah trees and 125 arecanut trees in this property. In the sale proclamation the very existence of these trees has been suppressed. It is also found from the evidence that there is a five anganam shed in the property, the existence of which has also been suppressed from the sale proclamation. The evidence further shows that there is in the property a pallam which has a perennial spring. This has also been suppressed in the sale proclamation. The evidence of P.W. 2 is that the thope portion of the property, which is four acres in extent, would yield 2500 coconuts annually and that there are four acres of nanja land in the disputed property, which yield 2 to 2 1/2 cart-loads of paddy per acre. It is the evidence on record that it is a double crop nanja land. There is also some extent of garden land in lot No. 2 which, according to P.W. 2, would yield 60 bags of groundnuts and 3 1/2 pothis of cotton annually. The total value of the property has been estimated by the first Court at Rs. 60,000 to Rs. 70,000. While arriving at this estimate the first Court had regard to Exhibit B-1, a registration copy of a sale deed executed on 3rd April, 1968 in respect of a property adjacent to lot No. 2 Exhibit A-1 shows that one acre of nanja land and 8 acres of punja land were sold thereunder for Rs. 29,000. It would, therefore, follow that the first Court's estimate of the value of lot No. 2 is not unreasonable. But then we find that this property of considerable value has been knocked down at the judicial sale for Rs. 11,000. Even the decree-holder himself had valued the property at Rs. 12,000. There can be little doubt that considerable injury has resulted to the judgment-debtor from the mis-description of the property in the sale proclamation as well as from the illegalities and irregularities committed by the decree-holder in the course of execution proceedings. Another vitiating infirmity is that though lot No. 2 is comprised in Zamin Paimash Nos. 126 and 128, the sale proclamation has omitted Zamin Paimash. No. 126 and has mentioned Zamin Paimash No. 128 alone. It is, therefore, clear that there has been a gross violation of the requirement of Order 21, Rule 66, Civil Procedure Code. As regards the proclamation of sale, P.W. 3 denies that there was any proclamation by torn torn and adds that his signature to the endorsement of the Amin was obtained without his knowing what it contained. Both the Courts below have elaborately considered the evidence relating to the alleged publication by tom tom and have come to the conclusion that there was no real proclamation as required under the rules and that the returns relating thereto had been fabricated at the panchayat office as alleged by P.W. 3.

7. The fact that due publicity was not given to the auction proceedings can also be gathered from the circumstance-that only two persons bid at the auction, one of them being the second appellant, who is admittedly the brother-in-law of the younger brother of the first appellant. A survey of the entire evidence gives the overall impression that the auction proceedings were shrouded in secrecy and care was taken to see that the legal representatives of the deceased judgment-debtor were kept in the dark about the execution proceedings. I therefore, agree with the Courts below and hold that the Court sale held on 6th March, 1967 is a nullity.

8. The result is that this appeal fails and will stand dismissed with costs. Leave refused.


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