SRIKAKULA CHINNA VENKATANARAYANA AND ORS. Vs. PANNAPATI ELIAS

JUDGEMENT

(1.) THIS is an application for review of the judgment and decree in S. A. No. 1313 of 1949. It was heard and disposed of by me on 26 -2 -1953. I dismissed it on one short ground, namely, that the appellants were concluded by certain prior proceedings which eventually ended in C. M. S. A. No. 113 of 1943.

(2.) THE District Munsif held that there was no proclamation of the sale as required by Order 21, Rules 66 -69 of the Code and that therefore the defendants were not debarred from questioning the validity of the court sale because of the prior proceeding ending in - - 'C. M. S. A. No. 113 of 1943. On these findings, he dismissed the suit. On appeal, the learned Subordinate Judge reversed this decision and decreed the plaintiff's suit. He agreed with the District Munsif, indeed, it was not disputed that the sale proclamation was not effected before the sale took place. But he held that the sale on that ground was not a nullity and that non -compliance with Rules 66 to 69 of Order 21 of the Code would only amount to material irregularity which could be urged only under an application filed under Order 21, Rule 90 of the Code and not by means of a separate suit. He was, however, of the opinion that the decision in - -'C. M. S. A. No. 133 of 1943 did not operate as res judicata. The defendants thereupon filed the above second appeal.

(3.) CLEARLY , this ruling applies to the present case. Here too, the prior application of the appellants was dismissed as being too late. There was no adjudication upon the substantial question raised by them as to the validity of the sale. That question was never heard and disposed of finally. The decision is also authority for the position that a plea as to the invalidity of a sale could be put forward as a defence to a suit for possession by the auction purchaser. Mr. T. R. Srinivasan, learned counsel for the respondent, was unable to distinguish this case, nor could he say that the principle of this decision was dissented from in the subsequent decisions. I must confess that I entirely overlooked this aspect when I disposed of the second appeal on the sole ground that the defendants were precluded from putting forward the plea that the sale was invalid by reason of the prior proceedings which ended with the order of Kuppuswami Aiyar J. in - - 'C. M. S. A. No. 113 of 1943'. In my view, the petitioners have made out a case for reviewing my judgment. I therefore intimated to counsel that I would hear arguments on the other points raised in the case.