SESHAGIRI AIYAR Vs. VALAMBAL AMMAL

JUDGEMENT

(1.) This Letters Patent Appeal is against the decision of Panchapakesa Aiyar J. in C. M. S. A. No. 17 of 1948. The matter arises out of execution proceedings in pursuance of the mortgage decree in O S. No. 512 of 1936, District Munsif Court, Kulitalai and the appellant in the appeal is the auction-purchaser in those execution proceedings.

(2.) One Muthurathnam Iyer filed O. S. No. 512 of 1936, District Munsif's Court, Kulitslai to enforce the security bond dated the 28th May 1928 executed by defendants 1 and 2 in favour of the members" of a chit fund. The security was created on three items of property. Item I is a wet land bearing S. No. 188/2 of the extent of 1 acre 60 cents. Item 2 is a wet land bearing S. No. 299/1 of the extent of 84 cents and item 3 is dry land bearing S. No. 222/4 & measuring 4 acres 93 cents. The fourth defendant was impleaded in the suit as she claimed to be a puisne mortgagee over items 1 and 2 under a mortgage deed dated the 14th September 1931. It is claimed that the mortgage is a usufructuary mortgage. The fifth defendant was also a puisne mortgagee and was therefore impleaded in the suit. The mortgagee obtained a mortgage decree in the suit on the 19th March 1937 for Rs. 2394. A final decree was passed on the 16th August, 1937. The decree-holder filed the first execution petition 579 of 1937 on the 6th September 1937, for the sale of the property and the sale was ordered. On 15th April, 1939, the decree was scaled down to Rs. 1951-6-9 under Madras Act IV (4) of 1938 at the instance of the first defendant. On 1st May 1940 sale was ordered for the amended amount and costs in E. P. No, 325 of "1939, but the sale was stayed under Madras Act IV (4) of 1938. On 20th February 1941 the decree-holder filed E. P. No. 197 of 1941 but this time the first defendant obtained stay under the Madras Debt Conciliation Act. On 30th January 1942 the decree-holder filed E, P. No. 201 of 1942 and in that execution petition notice was taken to the fourth defendant and she was served by affixture, The fourth defendant did not appear and did not contest the execution. The sale was thereafter fixed to 20th January 1943 and the sale proclamation was also settled by the Court fixing the upset price of the three items of property on the basis of the valuation made by the Aniin. For the three items Rs. 1500, 700 and Rs. 500 respectively were fixed as upset price. The sale was again postponed but this lime at the instance of defendants 4 and 5 who filed an application under Section 20 of Madras Act IV (4) of 1938. The application was filed on 19th January 1943 and the sale was stayed on 19th February 1943. The order passed on the execution petition on that date was : "Execution stayed and sale is stopped. Petition closed." Thereafter, defendants 4 and 5 filed I. A. No. 376 of 1943 under Section 19 of Madras Act IV (4) of 1938 to again scale down the decree . But on that petition the decree was scaled down only to the same amount as before. Against this order there was an appeal by the 4th defendant in A. S. No. 239 of 1944 to the District Court, Trichinopoly, which was finally disposed of in 1945 confirming the order of the lower Court. On 26th July, 1944, the decree-holder filed E. P. No. 277 of 1944 to revive E. P. No. 201 of 1942, to settle the sale proclamation without notice to the defendants to sell the properties under Order XXI (21), Rules 66 and 72, Civil Procedure Code. The order on that petition was "allowed, proclaim and sell" and is dated 27th September 1944. Thereafter the sale was duly proclaimed and lots 1 and 2 were sold on the 27th September 1944 for Rs. 1501 and 701 respectively. On 28th October 1944 the sale was confirmed. The trouble of the decree-holder did not, however, end with this confirmation of sale.

(3.) On the 18th November 1944 the fourth defendant filed E. A. No. 760 of 1944 and E. A. No. 793 of 1944 to set aside the sale and to excuse the delay in filing E. A. No. 760. E. A. No. 760 was filed under Sections 47 & 151 & Order XLVII, Rule 1, C. P. C. and Section 18 of the Limitation Act. The ground on which the sale was impeached in that application was that the decree-holder and the auction-purchaser colluded together and brought about the sale fraudulently without notice to the defendants at a time when the appeal No. 239 of 1944 was pending in the District Court and that the petitioner became aware of the same only a week prior to the date of the filing of the petition. It was claimed in that petition that the defendant 4, the applicant, was entitled to an extension of time under Section 18 of the Limitation Act.