KUNJU VAREED Vs. MARY ALIAS MATHIRI

JUDGEMENT

(1.) The plaintiffs two in number sued to declare, that the decree in O. S. No. 406 of 1116 which the first defendant appellant had obtained against their deceased mother Elisa and the sale of the suit properties in execution of it, are not binding on them and for the recovery of possession of the properties with mesne profits. The suit was converted into a proceeding under S.47, C. P. C. in the first court itself, but it is more convenient to refer to the parties as in the suit. That court declared the sale to be void and decreed recovery of possession of the properties to the plaintiffs, on deposit by the latter of the sale amount and interest. On appeal by the first defendant, the Subordinate Judge confirmed the decree.

(2.) I think the first defendant has to succeed on a short ground. The sale in execution was held in Vrischigam, 1118, i.e., in December 1942, and the suit was filed on May 14, 1952. The suit which, as stated, was treated as an application, was held to be within time under Article 181 of the Indian Limitation Act, having been filed within three years from the date of the plaintiff's knowledge of the delivery of the properties pursuant to the sale. Article 181 is the residuary article, which provides for an application, a period of three years from the date on which the right to apply accrues. The two courts have applied this article on the footing, that the court sale was void by reason of the omission to issue the notice under O.21, rule 20 of the Travancore Civil Procedure Code corresponding to O.21, Rule 22 of the Indian Civil Procedure Code. It was common ground, that if the sale in execution was not void but was only voidable, Article 166 of the Indan Limitation Act, which provides a period of thirty days from the date of the sale for an application to set asid the sale would apply. In holding the sale to be void, both courts have failed to advert to the last proviso to O.21, Rule 20 of the Travancore C. P. C., which was introduced in that Code by a notification in the Travancore Government Gazette dated Makaram 10, 1115 and which reads as follows:

(3.) It was not disputed at the bar, that, in the absence of the proviso, the decisions are almost uniform, that the failure or the omission to issue notice under O.21, Rule 22 makes the sale or other execution proceedings void. But these decisions have not considered the effect of the proviso or other similar provision which has been introduced in some of the States. For example, a similar proviso has been inserted in the Rule, by the High Courts of Allahabad and Madhya Pradesh, while the High Courts of Assam, Calcutta, Patna and Orissa have introduced an additional sub-rule which, so far as the present question is concerned, employs similar phraseology. The only question to consider is what is the effect of this proviso.