CHIDAMBARA IYER Vs. KUNHUMUHAMMED

JUDGEMENT

(1.) THE legal representatives of the decree-holder are the appellants and the 4th defendant- judgment-debtor the respondent. THE second appeals arise in execution.

(2.) FIVE items of properties were directed to be sold under a mortgage decree; and items 3 to 5, belonging to the 4th defendant, were directed to be sold as the first lot. Notice of draft proclamation was served on the 4th defendant and the first lot was proclaimed for sale. That lot was actually sold on 4th April, and the sale was confirmed on 4th June, 1953. More than two years thereafter, the decree-holder filed an application for amending the plaint, the decree, the sale proclamation, etc. Notice was issued in that application and on receipt of notice the 4th defendant filed two applications which have given rise to the second appeals. One of the applications was to set aside the sale & the other was to condone the delay in filing that application. The original court dismissed both the applications; but on appeal the learned Subordinate Judge reversed the orders and allowed the applications.

(3.) THE further question for consideration is regarding the effect of such failure. THE learned advocate of the appellants brings to my notice two or throe decisions. One of them is the Division Bench ruling of this Court in Philip v. Thomas (1957 KLT. 774). It has been laid down in that case that the failure to comply with the provisions of O. XXI, R. 67(2) of the Code of Civil Procedure will at the most amount only to a material irregularity, which could be relied upon for filing an application under O. XXI, R. 90 and the sale would not be illegal or void. It is evident that this decision cannot apply to the present case, because R. 67(2) deals with a discretion vested in the court to direct the publication of the proclamation in the Official Gazette or in a local newspaper; and the failure to do so can only be an irregularity, which will only entitle the judgment-debtor to have the sale set aside under O. XXI, R. 90. THE next decision cited is that of the Travancore-Cochin High Court in Pakianathan Nadar Ponnayyan Nadar v. Karthiani Pillai Parvathi Pillai (1956 KLT. 327). A perusal of that judgment reveals that there was no evidence in that case regarding the location of the properties sold or whether the place where the proclamation was affixed was or was not adjacent to the other properties. THEre was also no pleading on the question; and therefore the learned Judge held that the defect was only an omission to comply with the requirements in publishing and conducting the sale and that would not render the sale void. Thus, in that case also the defect was treated only as an irregularity.