VISALAKSHI AND VISALAKSHI KRISHNAMURTHY Vs. MUTHIAH CHETTIAR

JUDGEMENT

(1.) BOTH these revisions can be dealt with under a common order. On 9th March, 1973, O.S. No. 191 of 1973, District Mun-sif.s Court, Tenkasi, was filed on the foot of a promissory note, dated 2nd September, 1972 lor a sum of Rs. 5,000. Pending the suit, the properties belonging to the defendants were attached before judgment in I.A. No. 381 of 1973. On 23rd April, 1973, the suit was decreed, on submission by defendants, against the first defendant, personally and against defendants 2 to 6 in so far as it related to the family properties in their hands. The attachment was made absolute. In execution of this decree, E.P. No. 71 of 1973 on the file of the District Munsifs Court, Shencottah, was filed for sale of the properties forming the subject-matter of the attachment. The upset price was fixed at Rs. 10,000. E.P.No. 22 of 1974 was filed again and the defendants were represented by a counsel. The upset price was reduced to Rs. 8,000. Then again, by another application, the upset price was reduced to Rs. 6,000. It was on 10th February, 1975, there was a sale in E.P. No. 70 of 1974 for a sum of Rs. 6,301, subject to the encumbrances, the purchaser being none other than the decree-holder. On 11th March, 1975, E.A. No. 25 of 1975 was filed by the first defendant for setting aside the sale in view of Ordinance I of 1975, which was later replaced by Tamil Nadu Act X of 1975. On 21st July, 1975, the execution application was dismissed and the sale was confirmed. On 30th August, 1975, the properties were taken delivery through Court and the delivery was recorded on 15th September, 1975. It has already been noticed that the purchase by the decree-holder in Court auction was subject to the encumbrances and, therefore, after taking delivery of possession, she discharged five encumbrances, 3 this and 2 mortgages, in all totalling to Rs. 59,000. In addition to this, she incurred the following: 1. Arrears of Agricultural Income-tax due for 7 yearsRs. 3,470.95

(2.) EXPENSES incurred in O.S. No. 22 of 1976 for evicting squatters set up by judgment-debtors.Rs. 15,000.00

(3.) INSTALMENTS paid to Land Development Bank, Tenkasi.Rs. 12,000.00 After all these, on 4th October, 1976, an execution application was taken out by the first defendant to set aside the sale in respect of few items and for re-delivery stating that he had no notice under Order 21, rule 66, Civil Procedure Code. This application was not actually numbered, but was treated as General Number 1634 of 1976. A similar application was taken out by defendants 3 to 6 in respect of same other items. This was also not specifically numbered, but it was treated as General Number 1632 of 1976. It may be noted that so far as these applications were purported to have been taken out under Order 21, rule 90, Civil Procedure Code, security was not offered. The date of the knowledge of sale was not also disclosed. Therefore, an objection was raised by the office as to the maintainability of the application under section 47, Civil Procedure Code, when the application ought to have been preferred under Order 21, rule 90, Civil Procedure Code. The plea of limitation was also raised. However, on 30th November, 1976, both these execution applications were rejected by the executing Court holding that the first defendant and defendants 3 to 6 were duly served by affixture. Against this dismissal C.M.A. Nos. 48 and 49 of 1977 on the file of Sub-Court, Tirunelveli, were filed. By an order dated 3rd July, 1978, the matter was remitted to the executing Court to consider whether these was proper service and whether the price was adequate. These two questions had to be decided after notice to the decree-holder.