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(Kamana) Venkataswami Vs. Godavarti Nagayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad1142; 87Ind.Cas.413
Appellant(Kamana) Venkataswami
RespondentGodavarti Nagayya
Cases ReferredThekkedath Neelu v. Subrarnania Moothan
Excerpt:
- .....appeal arises in connexion with an application made by him to set aside a sale under order 21, rule 90, civil p.c. a preliminary objection is taken that no second appeal lies in such a case. in reply, it is pointed out by mr. somasundaram for the appellant that though the petition is filed as one under order 21, rule 90 in substance the objections which he intends to press here-are really objections which come under order 21, rule 66 and, therefore, there is a right of second appeal as the application is really one under section 47, civil p.c. the objections put forward are two in number, namely, that the petitioner had no notice of the proclamation of sale and that there is an under-valuation of this property. both these objections fall under order 21, rule 66 and according to the.....
Judgment:

Madhavan Nair, J.

1. The 2nd defendant; is the petitioner. This Civil Miscellaneous Second Appeal arises in connexion with an application made by him to set aside a sale under Order 21, Rule 90, Civil P.C. A preliminary objection is taken that no second appeal lies in such a case. In reply, it is pointed out by Mr. Somasundaram for the appellant that though the petition is filed as one under Order 21, Rule 90 in substance the objections which he intends to press here-are really objections which come under Order 21, Rule 66 and, therefore, there is a right of second appeal as the application is really one under Section 47, Civil P.C. The objections put forward are two in number, namely, that the petitioner had no notice of the proclamation of sale and that there is an under-valuation of this property. Both these objections fall under Order 21, Rule 66 and according to the decision in Thekkedath Neelu v. Subrarnania Moothan (1919) 11 M.L.W. 59 the petitioner has got the right of preferring a second appeal. I, therefore, overrule the preliminary objection.

2. On the merits, I find that no question of law arises in this second appeal. The lower Appellate Court has found that, though the petitioner was not personally served, he has been served in the manner provided by the Civil P.C. The Court ordered substituted services on the petitioner and the finding of the Court amounts to this, namely, that in the circumstances of the case, such service was sufficient. The petitioner is one of the members of an undivided joint Hindu family. His father and mother were also parties to the suit. The father was personally served and the others were served by the notices affixed to the outer door of their house. Apart from the fact that the petitioner was properly served, I think that the family interests in the property would have been properly looked: after by the judgment-debtors.

3. Then it is argued that the property haft been under valued. This, like the other point, is also purely a question of fact. The lower Court has recorded a finding against the appellant and I am bound by it. I must, therefore, dismiss the second appeal with costs.


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