THOMMEN THOMAS Vs. JOHN SIMON

JUDGEMENT

(1.) These second appeals are by the 2nd defendant in O.S.No.301 of 1112 of the Additional Munsiffs Court, Alleppey, and are directed against two appellate orders of the court below respectively confirming two separate orders of the executing court which refused to set aside the court sale of item 2 and to order re-delivery thereof at the instance of the appellant.

(2.) The decree in the case was passed on 29.10.1115 on basis of a Chitty security bond of 1099 executed by the 1st defendant and charging items 1 and 2. The 2nd defendant who was the husband of the 1st defendants sister had been impleaded as the assignee of a subsequent mortgage of 1100 created by the 1st defendant in respect of item 2. It is a question in dispute between the parties as to whether the 2nd defendant was only a benamidar for the 1st defendant in the matter of the mortgage assignment and whether he had any possession at all of item 2. Steps in execution were commenced on 27.2.1117 with the issue of notice under O.21 R.22 C.P.C. to both the defendants 1 and 2. The subsequent notice as regards settlement of proclamation was however issued to the first defendant alone and item 2 was sold in court auction and purchased by the decree holder himself on 3.8.1117 in part satisfaction of the decree. On 3.10.1117 a petition to set aside the sale was filed by the 1st defendant claiming to be in possession, under O.21, R.90 C.P.C. on ground of fraud and material irregularity in the publication and conduct of the sale. The petition was, after trial, rejected by order dated 18.1.1119 subject however to liberty reserved to the 1st defendant to avoid confirmation of sale by payment of the sale amount within 3 months. The 1st defendant did not avail himself of the opportunity so afforded to save the property but took the matter to the District Court which dismissed his appeal on 9.3.1120. Subsequently on the motion of the respondent, assignee of the sale sannad right over item 2 and of the balance decree amount the property was delivered over from the 1st defendant on 12.1.1122. Soon thereafter on 31.1.1122 the 2nd defendant applied in execution to have the sale and delivery proceedings set aside alleging fraudulent suppression of notices so far as he was concerned and claiming that his possession of the property was still undisturbed. The executing court found that the 2nd defendant had knowledge of the proceedings in any event on 11.10.1121 when he appeared in court to apply for time to file objections to the notice under O.21, R.16 issued on behalf of the respondent and that the present application filed more than 30 days later was therefore barred by limitation. The order was passed on 6.6.1952. The 2nd defendant took up the matter in C.M.A. No. 22 of 1952 before the District Court. There S.18 of the Limitation Act was also sought to be pressed in aid to get over limitation but that court refused to accede and dismissed the appeal. Hence the second appeal S.A. No. 648 of 1954 herein.

(3.) Following the executing courts order of 6.6.1951 as above, the 2nd defendant made fresh application to the executing court on 4.7.1951 for re-delivery of the property alleging for the purpose that he had been actually dispossessed as per the delivery order in the case. It was urged by him, that whatever may have happened on his petition to set aside the sale, the delivery proceedings were illegal for want of notice to him and therefore he was entitled to re-delivery in any event. The executing court found on this petition that he had no possession at any time and rejected it by order dated 14.2.1952. This order was in due course confirmed by the District Court in A.S. No. 271 of 1952. Hence the second appeal No. 649 of 1954.