SANKARANARAYANA PILLAI Vs. SANKARA IYER

JUDGEMENT

(1.) THE 3rd defendant is the appellant. As endorser of a cheque drawn by defendants 1 and 2 in his favour which was dishonoured by them the endorsee obtained a decree for the money in O. S. 49 of 1120 on the file of the Alleppey District Court against him as also against the drawers on 22. 6. 1121. THEre was an appeal against that decree by the 3rd defendant which also ended in favour of the plaintiff. THE appellate decree was on 1. 12. 1949. E. P. 78 of 1951 was presented on 7. 11. 1951 for execution of the said decree against the 3rd defendant and his properties. THE 3rd defendant objected by c. M. P. 352 of 1952. His objection was that his liability was that of a surety and was as such conditional on the amount not being found realisable from defendants 1 and 2 and that steps to recover the money from him could not be taken in the first instance. THE objection was rightly overruled and execution of the decree allowed as applied for by order dated 18. 3. 1952. Against this order the 3rd defendant preferred an appeal to this court which also went against him. Meanwhile, pursuant to the order passed by the court below directing further steps, the decree-holder on 28. 3. 1952 produced the schedule of properties that had already been attached, for purposes of proclamation. On that date the court directed certain amendments to the schedule and production of a copy of the chitta of one survey number. Those directions were complied with and the court on 9. 6. 1952 ordered "r. 66 Notice" and fixed 8. 7. 1952 for its return. On 8. 7. 1952 notice was served upon the 3rd defendant but nothing happened in court that day, the records having been called up by the high Court in connection with the aforesaid appeal. On 13. 3. 1953 after receipt of the records back, the court passed the following order: "proclamation of sale at spot on 15. 6. 1953 and in court on the 16th, 17th and 18th June 1953". On 27. 3. 1953 the 3rd defendant filed C. M. P. 2217/53 dated 26. 3. 1953 supported by his affidavit praying for a review of the aforesaid order dated 1. 3. 1953 and for directing reception of his objection to the proclamation which was presented along with it as C. M. P. 2218. Learned counsel for the decree-holder recorded on C. M. P. 2217 on 27. 3. 1953 as follows: "copy of the petition and affidavit alone and not the objections received. I object to the petition at this stage. THE object is only to drag on and delay the execution". THEreupon the learned judge passed the following order on the same day, i. e. , on 27. 3. 1953:-"for objections and hearing to 6. 6. 1953" and on C. M. P. 2218 the judge passed an order as follows: "report after the disposal of C. M. P. 2217/53". THEre was no sitting of the court on 6. 6. 1953 and the matter stood adjourned to 20. 6. 1953 wherefrom it was advanced to 13. 6. 1953. On that date the decree-holder filed C. M. P. 2582 by way of objections to C. M. P. 2217. CM. P. 2217 was heard that day and was posted for orders to 18. 6. 1953. On the day previous to the said date that is on 17. 6. 1953, the 3rd defendant filed c. M. P. 2701/53 producing a certified copy of the judgment of this court in A. S. 343/52 and contending that as per that decision the order for sale passed on 13. 3. 1953 was unsustainable and praying that the matter may be further heard and the above point considered before passing orders. Counsel for the decree-holder was served with a copy of the petition and he made the following endorsement thereon: "copy of petition received, I object. THEre is no need to hear arguments over again. My client is no party to the judgment filed. THE document is also inadmissible being copy of a copy. THE facts in that case are also entirely different". THE court ordered on C. M. P. 2701 that the whole matter be reposted to 20. 6. 1953. Accordingly on 20. 6. 1953 the court heard arguments afresh on all points and the order which is the subject-matter of this appeal was passed on C. M. Ps. 2217 and 2701 dated 26. 6. 1953. In the B diary, however, as on 22. 6. 1953 is recorded: This is wrong as regards C. M. P. 2218 which was not dismissed and is still pending as per the order dated 27. 3. 1953.

(2.) MR. Krishnamoorthy Iyer, learned counsel for the respondent-decree-holder, raised a preliminary objection as regards the competency of the appeal. The objection is that the order appealed against is one rejecting an application for review which is not appealable. The whole case as also arguments on the preliminary objection were heard.

(3.) THE sequence of the two matters of drawing up the proclamation and making an order for sale is indicated by the use of the word 'then' in the aforesaid R. 275 of the Civil Courts Guide which says that: "the proclamation of sale, when settled by the judge, shall be signed by him, and an order for sale shall then be made" R. 67 (1) of 0. 21 of the Civil P. C. provides that: " (1) Every proclamation shall be made and published as nearly as may be, in the manner prescribed by R. 54, sub-r. (2)". Sub- rr. (2) and (3) of R. 67 provide for details of the manner of further publication, if any, according as the court directs or the nature of the property sold requires. R. 65 provides for the person to conduct the sale and that it shall be made by public auction in the manner prescribed. THE aforesaid provisions of law make it clear that without the court drawing up and settling the proclamation for the sale of the property sought to be sold, there cannot be a legal sale.