GOVINDA MENON Vs. VARKEY

JUDGEMENT

(1.) These Second Appeals arise from proceedings in execution of the decree in O. S. No. 41 of 1962. The appellants are the decree holders and the respondents are defendants 1 to 3. Two applications, E. A. No. 166of 1966 and E. A. No. 321 of 1966 were moved by the defendants; one by defendants 1 to 3 and the other by the first defendant, under S.47 and O.21, R.90, of the Code, to set aside an execution sale held pursuant to the Execution Petition 1075 of 1965 on 10-11-1965. The grounds on which these applications were filed are material irregularity and fraud in publishing and conducting the sale. The execution Court allowed these applications. Though the Appellate Court in appeal came to the conclusion that there is no material irregularity or fraud and that there has been no under valuation it confirmed the setting aside of the sale on the grounds (1) "that there is absence of sanction to bid" and (2) "the sale is held without jurisdiction in view of the absence of fresh proclamation and R.66 notice as contemplated by the decision reported in 1966 KLT 476 ".

(2.) It is conceded that if the sale has to be set aside, the applications referred to, filed beyond the period prescribed by Art.127 of the Limitation Act, 1963, are not sustainable. Therefore the argument turned on the question as to whether the sale held on 10 11 1965 is a void sale or not. It was contended by the judgment debtors that the sale is void whereas the appellants urged that it is a voidable sale and should be set aside.

(3.) Lack of permission to bid as contemplated by R.72 O.21 of the Code of Civil Procedure as is clear from sub-r.(3) thereof cannot make the sale held without sanction, void. That can only be a ground for having the sale set aside.