PYLI Vs. VARGHESE

JUDGEMENT

(1.) "The erstwhile Cochin State obtained a decree dated 26. 4. 1110 in O. S. 1011 of 1107 on the file of the Muvattupuzha Munsiff's Court for money charged upon certain items of immovable property against three defendants who are Christian brothers. The first defendant executed a deed of settlement which is marked as Ext. III on 11. 2. 1113 creating an interest in presenti in one Ipe Varghese along with himself. The first defendant died in the year 1116. On 26. 11. 1116 an execution petition was presented. More than one year having elapsed after the previous application, notice under 0. 21 R. 20, of the Travancore Civil P. C. , corresponding to R. 22 of the Indian Code was ordered. Notices were served upon defendants 2 and 3. The notice issued to the first defendant was returned unserved with an endorsement that he was dead. The court posted the case to 30. 2. 1119 for impleading the legal representatives of the deceased first-defendant. Not having taken steps in that regard till that date, the decree-holder applied for time on 30. 2. 1119. That application did not find favour with the court and it was rejected. The next execution petition was filed on 29. 5. 1119. Therein the decree-holder stated that defendants 2 and 3 are the legal representatives of the deceased first defendant. There was a prayer for notice under 0. 21 R. 20. No notice, however, under that rule was issued but notice was issued for settlement of the proclamation of sale, under 0. 21 R. 64 of the Travancore CPC. corresponding to R. 66 of the Indian Code. Pursuant to this execution petition the court sold an extent of 1 acre and 25 cents in item 2 in the decree on 25. 12. 1119. Only defendants 1 and 2 were interested in this property. On 27. 1. 1120 the sale was confirmed. On 27. 5. 1120, two petitions were filed for setting aside the sale, one by the third defendant and the other by the said Ipe Varghese who claimed under the settlement made by the deceased first defendant as his legal representative. Both the applications were allowed by the court below by one order dated 7. 3. 1951.

(2.) LEARNED counsel for the appellant says that one appeal happened to be presented against the order upon the two petitions because one common order was passed disposing of both of them. Whether this is right or not and if not, what should be its consequence and whether and in what manner the defect could be cured are all matters for consideration.

(3.) AS regards ground No. 2 Mr. Krishnamoorthi Iyer contends that the non-issue of the notice under that rule does not affect the jurisdiction of the court to sell the property and that if at all it would only be an irregularity which would not render the sale void but only voidable and to avoid which an application has to be presented within 30 days under Art. 151 of the Travancore Limitation Act. On the question whether the issue of notice under 0. 21 R. 20 is a factor affecting the jurisdiction of the court, there is a keen conflict of judicial opinion.