CHERIA ASSANKUTTY Vs. CHERIA ABDULLA

JUDGEMENT

(1.) These Civil Miscellaneous Second Appeal and Civil Revision Petition arise out of a petition filed by the defendants 4, 9, 14 and 13 in O. S. 254 of 1942 on the file of the District Munsiffs Court, Badagara to set aside a sale held in execution of the decree there. The petition was dismissed by the executing court but allowed by the District Judge of North Malabar in appeal by the petitioners. The second appeal is accordingly taken by both the auction purchaser and the assignee decree holder. The revision petition is directed against the same order and is filed only as an alternative.

(2.) The decree in O.S. 254 of 1942 was passed on 16-8-1943 in favour of five members of a Muslim Marumakkathayam tarwad against the karnavan and all the other members arrayed as defendants, for arrears of maintenance due to them. Subsequent to the passing of this decree, a suit O.S. 98 of 1946 on the file of the Tellicherry Sub Court was instituted by the 4th defendant in the maintenance suit (one of the respondents herein) and another, for partition of their shares in the tarwad properties. This partition suit ended in a preliminary decree dated 7-7-1949 and is now pending stage of final decree. The court sale in question was of an item of tarwad property covered by the preliminary decree in the partition suit and was conducted on basis of an execution application dated 10-6-1952 filed by the assignee decree holder, 2nd appellant herein and making the karnavan and the Receiver appointed in the partition suit, alone as respondents thereto. The sale took place on 9-6-1953 and was confirmed on 13-7-1953. The petition herein to set aside the sale was filed more than a month thereafter on 26-8-1953 under O.21 R.90 C. P C. and S.18 of the Limitation Act. There were various grounds relied on by the petitioners but we are concerned with the only two grounds of illegality which found favour with the lower appellate Court, viz. (1) that the sale was held in contravention of the provisions of S.10 of the Mappilla Marumakkathayam Act (Madras Act XVII of 1939), and (ii) that there was neither impleading of nor issue of notice to the members of the tarwad in execution, though they were cosharers in the property sold along with the karnavan and were also parties-defendants. Mr. Kuttikrishna Menon, learned counsel for the appellants has attacked before me the conclusion of the court below on both the grounds. I will take them up in their order.

(3.) S.10 of the Mappilla Marumakkathayam Act runs as follows:-