CHENNEGOWDA Vs. VENKATACHALASETTY

JUDGEMENT

(1.) This is an appeal against an order of the learned Additional Subordinate Judge of Mandya, in Mis. A. No. 2/48-49 setting aside the order of the Munsiff, Mandya, who had dismissed the application in Misc. No. 22/47-48 filed for setting aside a sale held in Execution No. 1117/43-44 on his file.

(2.) The facts of the case are that a decree was obtained against the petitioner and his brothers in O. S. No. 608/40-41 on the file of the Munsiff, Mandya, and that in execution of the decree the property in dispute was sold on 14-6-45. The sale was confirmed, possession was obtained and the purchaser paid kandayam as well as contribution and water rate for conversion of the dry land into wet land. It is after this that the petitioner, who is one of the judgment debtors, filed Mis. No. 22/47-48 for setting aside the sale on the ground that he had not been served with a notice under Order 21, Rule 22, C. P. C. It is clear from the records that no such notice was served on him though a notice of that kind was served in person on the eldest brother of the petitioner. A notice was issued to the petitioner to Hoskote where he is said to have been in service but it was returned unserved on the ground that he was not there. No further notice appears to have been taken. There is hardly any doubt that, the failure to issue such & notice is fatal to the validity of a sale. The decision in 24 Mys. L. J. is clear on the point and there are also numerous authorities of other Courts. The above decision of our Court has also been followed in numerous decisions of this Court subsequently.

(3.) It has, however, to be noticed that the petitioner was served with a notice under Order 21, Rule 66, C. P. C. and later on he was also served with a notice of the assignment of the decree. The notices were served on his house on his refusal to receive them. There is not sufficient material for holding that he was not served with these notices, the service of which has been held by the executing Court to be sufficient. This raises an important point of law. It is no doubt true that as observed by Fazl Ali J. in Brojobala Debi v. Madhusudhan Singh, A. I. R. (25) 1988 Pat. 162: