THIRUVALLOOR PILLAI Vs. RAMASWAMI NAIDU

JUDGEMENT

(1.) THE application E. A. No. 596 of 1965 in E. P. No. 593 of 1964 in O. S. No. 324 of 1961 out of which this appeal arises was instituted by Thiruvalloor Pillai, the appellant herein, under Section 47 and Order 21, Rule 53, Civil P. C. for setting aside a court auction sale held on 23-8-1965 under the following circumstances: the first respondent herein, Ramaswami Naidu, obtained a decree in O. S. No. 324 of 1961 the suit referred to above, on a promissory note against Kanakavalli Ammal the mother of the appellant and his three brothers on 17-8-1961. Kanakavalli Ammal died on 17-9-1961 and after her death the appellant herein and his three other brothers were impleaded as her legal representatives in E. A. 311 of 1962 in E. P. 208 of 1962 after due notice to them. In the first E. P. No. 208 of 1962 the property in dispute was attached as belonging to the estate of the deceased Kanakavalli Ammal in the hands of the appellant and his brothers; but the execution petition was dismissed on 14-8-1962 as not pressed; but the attachment was kept alive for six months. In the second E. P. 598 of 1962, the property in question amount other properties which was under attachment was brought for sale and that petition was dismissed on 16-11-1963, for default on the part of the first respondent-decree holder due to his failure in not taking steps.

(2.) LATER on E. P. No. 593 of 1964 out of which the appeal arises was filed by the first respondent for attachment of the property in dispute as well as other items. The property was attached and notice under Order 21, Rule 66, C. P. Code was personally served on the appellant and as he was absent he was set ex parte on 34-1965. On the adjourned date (6-5-1965) the terms of proclamation were settled and the property in dispute was ultimately sold in court auction sale held on 23-81965 to the second respondent.

(3.) THE appellant has thereupon preferred the present application, E. A. No. 596 of 1965 under Section 47 and Order 21, Rule 58, C. P. Code for setting aside the sale. It is urged that Kanakavalli Ammal had settled the property in dispute on the appellant and his three brothers giving them each an undivided one-fourth share in the property, reserving for herself only a life estate till her death. Disagreeing with the learned District Munsif the learned Additional Subordinate Judge, Vellore, had held that the settlement deeds executed by Kanakavalli Ammal in favour of the appellant and his three brothers are true, valid and acted upon, that kanakavalli Ammal had merely a life interest in the disputed property during her lifetime, that after her death the appellant and his brothers became entitled to a life interest in the disputed property and that, on the date when execution of the decree was sought after the death of the lady, the lady had no more interest in the property, and that the appellant and his brothers were having a life estate in the properties independently in their own right. This finding is amply borne out by the evidence on record and I do not find any material whatsoever for interfering with the well-considered judgment of the learned Subordinate Judge.