PHILIPOSE SIMON Vs. NARAYANA PANICKER SIVASANKARA PANICKER

JUDGEMENT

(1.) This second appeal is from an appellate order confirming the order of the executing court whereby a sale in execution of a cooperative award was set aside on an application by the judgment debtor under O.21 R.87 of the Travancore Code of Civil Procedure corresponding to O.21 R.90 of the Indian Code of Civil Procedure.

(2.) The sale in execution took place on the basis of an execution application dated 9.6.1119 which prayed that the legal representatives of the 3rd defendant be impleaded as defendants 4 to 11 and that the scheduled property, which consisted of an equity of redemption belonging to the 3rd defendant be sold in execution after attachment and proclamation. Of these defendants 4 to 11, defendants 8 to 10 were minors and separate prayer was made for appointing the 6th defendant as their guardian ad litem. It was also prayed that notice under O.21 R.20 CPC (Travancore) corresponding to O.21 R.22 of the Indian CPC be issued to the parties before execution proceedings were taken. Even before notice was issued under O.21 R.20, the plaintiff filed special application for levying immediate attachment over the property in view of the apprehension that the property might be alienated before notice was issued under O.21 R.20. The court passed order for attachment on 13.6.1119 though without mentioning any reasons therefor. The 6th defendant was in due course appointed as guardian. Notice under O.21 R.20 was also issued and served and the property was subsequently duly proclaimed and sold in execution for a sum of Rs. 300 in favour of the present special appellant, stranger to the decree but mortgagee thereof. The 7th defendant, on 15.11.1120, filed a petition complaining that the procedure adopted in execution was illegal and fraudulent and in any event vitiated by material irregularities as a result of which, the 3rd defendants estate had sustained substantial loss and praying that the court sale be set aside in consequences.

(3.) The plaintiff and the auction purchaser both objected to this petition. Later on 18.1.1121 the plaintiff agreed to have the sale set aside on deposit of the sale amount and commission. The deposit was made by the judgment debtors and the sale was set aside without reference to the auction purchaser. This order was however set aside by the District Court on appeal by the auction purchaser. Subsequently the matter was argued without evidence and the executing court set aside the sale on the basis of its findings (1) that the order of attachment of 9.6.1119 without a preliminary issue of notice under O.21 R.20 was illegal and vitiated the whole proceedings, (2) that the execution application of 9.6.1119 was barred by limitation under Art.166 (Travancore) corresponding to Art.182 of the Indian Limitation Act, (3) that the procedure adopted by the plaintiff to bring the properties of the 3rd defendant alone to sale was fraudulent, and (4) the property was sold for inadequate value. The matter was taken in appeal by the auction purchaser before the District Court which upheld all the findings entered by the learned Munsiff and finally confirmed the order and hence this second appeal by the auction purchaser.