RAJAMMAL Vs. A T KRISHNASWAMI MUDALIAR

JUDGEMENT

(1.) ONE Ammasiappa Gounder and three others filed the suit O. S. No. 226 of 1946 on the file of the Subordinate Judge, Coimbatore, against the first respondent krishnaswami Mudaliar and others, claiming a sum of Rs. 1,92,109-10-3 ps. being the value of jaggery supplied to the defendants. The suit was decreed for a sum of rupees 98,507-13-0 with interest at six per cent, per annum from the date of suit. The defendants preferred A. S. No. 713 of 1947 against the decaree and the plaintiffs filed A. S. No. 537 of 1948 to this court claiming the balance amount of the suit claim. The defendants filed an application for stay of execution of the decree on 16-12-1947. The interim stay of execution of the decree was made absolute on condition of the defendants-appellants depositing the decree amount on or before 20-1-1948. The plaintiff were permitted to withdraw the amount deposited on furnishing security. One Ramaswami Gounder, the husband of the appellant herein, and his first wife janaki Ammal furnished security for the amount and the plaintiffs were permitted to withdraw a sum of Rs. 1,05,715-5-0 and another sum of Rs. 2624-5-0 which were deposited by the defendants towards the decree and costs of the suit. On 31-10-1952. the appeal filed by the defendants was allowed and the decree in O. S. No. 226 of 1946 was set aside and the appeal 537 of 1948 filed by the plaintiffs was dismissed. Defendants A. T. Krishnaswami mudaliar and A. T. Devaraja Mudaliar applied for restitution against the plaintiffs. Being unable to recover the amount from the plaintiffs. on 7-1-1957 Krishnaswami mudaliar and Devaraja Mudaliar filed E. P. R. No. 134 of 1957 in O. S. 226 of 1946 for sale for the properties covered by the security bond executed by Ramaswami gounder and his first wife janaki Ammal pending this application, Krishnaswami mudaliar and Devaraja Mudaliar died and their legal representatives were brought on record. Ramaswami Gounder and his first wife Janaki Ammal also dies and rajammal the appellant herein, was brought on record as their legal representative. In the E. P. for sale of these properties in the hands of appellant, notice was issued on 22-3-1957. ON 29-8-1957 the appellant entered her appearance through counsel. Though the learned counsel who appeared for the appellant took time for counter, ultimately he did not file a counter; the petition was adjourned for filing sale papers and the sale papers were filed on 5-1-1959 ultimately. On 17-3-1959 notice of sale was ordered; counsel was served and he took time for filing counter, but he did not file any counter. Therefore, the petition was posted for settlement of the proclamation of sale. The proclamation was settled on 3-12-1959 and the court ordered proclamation and sale of the properties on 27-1-1960. The upset price for lots V. VI and VII was fixed at rupees 15000, 5000 and 12000 respectively. These lots V. to VII are the properties now involved in these execution proceedings. Since there were no bidders. the upset price was reduced by 25 per cent, and again reduced by another 20 per cent. On both occasions the appellant herein was given notice. Ultimately lots V and VII were sold to Kangayappa Gounder, the 4th respondent herein for Rs. 9010 and Rs. 7210 respectively and lot VI was sold to one Kaliappa gounder, whose legal representatives are respondents 6 to 10 in this appeal. for rs. 3010 on 16-11-1960, The execution proceedings were adjourned to 22-121960 for confirmation of sale of lots V to VII. In the meanwhile on 14-12-1960, the appellants filed an application to set aside the sale and order resale of lots V, vi and VII. The grounds on which she wanted the sale to be set aside were that the price fetched was very low, that there was no due proclamation or advertisement, that the properties were not correctly and properly described, that the valuation given by the decree-holder and mentioned in the proclamation was too low, that one Nataraja Gounder, out of enmity dissuaded the bidders from bidding and the purchasers were benamidars for the said Nataraja Gounder and that in execution of a decree in O. S. 1394 of 1955 on the file of the District Munsif, coimbatore, a Receiver was appointed in respect of these properties and the sale was held without impleading the Receiver and without obtaining the permission of the District Munsif Court. When this application was filed, the appellant was directed to furnish the necessary security as contemplated under Order 21, Rule 90. Civil P. C. The appellant filed an application with the necessary title deeds and encumbrance certificate for accepting the security offered. Notice was issued to the decree-holder and the purchasers. Since security was found to be insufficient, the appellant was asked to produce additional security by an order dated 8-111961. Since the appellant failed to produce additional security, her petition to receive the security was dismissed on 17-9-1966. On the same day since no security was furnished as ordered, the petition for setting aside the sale was also dismissed. The appellant has now preferred this appeal against the order dismissing her application to set aside the held on 16-11-1960.

(2.) THE learned counsel for the appellant contended that, since the execution petition was filed for sale of secured properties, the proviso to O. 21, R. 90. Civil p. C. was not applicable and that, therefore, the appellant could not be required to furnish any security as demanded by the lower court. He further contended that even assuming that the proviso to Rule 90 of Order 21 was applicable unless the lower court has come to a definite conclusion that the value of the properties would not be sufficient to cover the liability on the properties, the executing court could not order furnishing of security under the proviso. It was further contended that the orders demanding security and additional security were interlocutory orders which could be questioned by the appellant in the present appeal which has been preferred against the order of dismissal of her application to set aside the sale. The learned counsel for the appellant relied on the decision of this court in saradambal v. Arunachalam, In that case the appellant who was judgment-debtor filed an application under O. 21, R. 90 for setting aside the sale of the property and also filed an application for dispensing with the furnishing of security contemplated by the proviso to Order 21, Rule 90. the learned subordinate Judge who disposed of that application, dismissed the application for dispensing with the furnishing of security and called upon the applicant to furnish security. The judgment debtor furnished an extent of 72 cents as security and that was dismissed as insufficient thereafter the application to set aside the sale was dismissed on the ground that that the security had not been furnished. On appeal by the judgment-debtor, it was held that the proviso to Rule 90 of Order 21 applied to every case where an immoveable property was sold, whether it was in execution of a mortgage decree or any other decree and the language of the rule did not warrant any distinction being made not warrant any distinction being made between the sale of an immoveable property made in execution of a mortgage decree and that in execution of any other decree. The learned Judge also held:-" in the case of a mortgage decree a proper exercise of discretion on the part of the executing court will be to direct the furnishing of security only if it comes to the definite conclusion that the value of the property will not be sufficient to cover the liability on the property including the amount for which the property was sold. So long as the learned subordinate Judge has not come to the positive conclusion on this aspect, he will not be exercising his discretion property or legally if he directs the applicant to furnish security. We are of opinion this is the correct statement of the law. But in the present case no application for dispensing with the security was filed. It was not contended before the lower court that the properties brought to sale were sufficient security by themselves and that therefore she need not furnish any security under the proviso to Rule 90 of Order 21. Since the appellant did not file any application for dispensing with the furnishing of security and did not contend at any stage that the properties brought to sale were sufficient security by themselves, she could not now be permitted to state that the lower court failed and neglected to come to a definite conclusion that in the circumstances of the case, the appellant was not required to furnish any security under the proviso to R. 90. It is not disputed that before ordering the security to be furnished under R. 90 the appellant had an opportunity of being heard. In these circumstances, it is not open to the appellant now to content that the order of the lower court requiring her to furnish security was not valid.

(3.) IN the decision in Saradambal v. Arunachalam, 1928-2 Mad LJ 266 it was also held that the order directing furnishing of security under the proviso to Rule 90 could be questioned in an appeal filed against the ultimate order dismissing the application to set aside the sale. It was so held on the ground that sub-section (1)of S. 105. Civil P. C. applied not only to non-appealable orders but also to appealable orders which were not appealed against. But in another decision in trivandrum Permanent Fund Nagarcoil v. K. M. A. Mohamed Mohideen Sahib, 1968-2 mad LJ 377, the same learned Judge has held that the order dispensing with the furnishing of security affects the rights of parties and that order would come within the phrase "in relation to the execution, discharge or satisfaction of the decree" within the meaning of Section 47 and an appeal was competent under section 47 against that order. In effect, though this decision related to the maintainability of an appeal under Section 47 against an order dispensing with the furnishing of security, the reasonings and the ratio of this decision will apply to an order directing the furnishing of security under the proviso to Rule 90 of Order 21, if such an order would come within the phrase "in relation to the execution, discharge or satisfaction of the decree", then if that order had not been appealed against, it would operate as res judicata in an appeal preferred against the order dismissing the application to set aside the sale. In our opinion, the more reasonable and correct view is that expressed by the Mad LJ 266 = (AIR 1966 Mad 324) and we are therefore, of the view that an order directing the furnishing of security or dispensing with the furnishing of security under the proviso to Rule 90 will not come within the scope of the phrase "in relation to the execution discharge or satisfaction of the decree" in S. 47. In that view, the appellant herein is entitled to call in question the order of the learned Subordinate Judge calling upon her to furnish security in this appeal preferred by her against the dismissal of her application to set aside the sale. But as we have already stated, since the appellant did not apply for dispensing with the furnishing of security, it could not be said that the lower court was wrong in calling upon her to furnish security.