NACHIMUTHU GOUNDAR AND ANR. Vs. AMARAVATHI

JUDGEMENT

(1.) THIS Civil Miscellaneous Second Appeal arises under the following circumstances:

(2.) THE second appellant purchased, under the hammer of Court, on 6th March, 1967 a particular property at a sale in execution of a decree obtained by the first appellant against one Karuppakkal in O. S. No. 1383 of 1964 on the file of the Principal District Munsif, Coimbatore. Sometime after the date of the decree, Karuppakkal died and the decree -holder filed E. P. No. 155 of 1966 praying that eight persons including Amaravathi, the respondent herein be impleaded as the legal representatives of Karuppakkal as respondents 2 to 9 in E. P. No. 155 of 1966, and that three lots of properties described in the E. P. be attached and brought to sale. Though all the three lots were attached, lot No. 2 alone was ultimately brought to sale. Two persons offered bids and the second appellant offered the highest bid of Rs. 11,000 and his bid was accepted and the auction knocked down in his favour. On the 26th of June, 1967, Amaravathi, who is the respondent herein and who was impleaded as the 6th respondent in the execution petition, filed a petition before the District Munsif of Coimbatore in E. A. No. 833 of 1967 under Section 47, Civil Procedure Code read with Section 17 of the Limitation Act, praying for a declaration that the Court sale of the property held on 6th March, 1967 was a nullity and for setting aside the same, if necessary. A number of grounds were urged in this petition for setting aside the sale. The executing Court held that the sale was vitiated by illegality as well as by a number of material irregularities relating to the publication and conduct of the sale which had resulted in substantial injury to the legal representatives of the judgment -debtor. Consequently the petition was allowed with costs. Against this order the appellants preferred C. M. A. No. 76 of 1969 on the file of the Additional District Judge, Coimbatore West. The first appellate Court agreed with most of conclusions of the Court of first instance and held that the Court auction sale dated 6th March, 1971 was void and a nullity and consequently dismissed the Civil Miscellaneous Appeal with costs. It is against the dismissal of the Civil Miscellaneous Appeal that the present Civil Miscellaneous Second Appeal has been preferred.

(3.) ONE preliminary objection taken by the appellants to the competency of the petition filed by the respondent under Section 47, Civil Procedure Code, may first be stated. According to the appellants, although the respondent Amaravathi is one of the legal representatives of Karuppakkal, she did not get any interest in lot No. 2, which was actually sold in execution of the decree. According to the appellants, lot No. 2 was bequeathed, by Karuppakkal under a registered will dated 2nd September, 1965 exclusively to one Palaniswami Gounder, who is the brother of Amaravathi. Even on the appellants' own showing, Amaravathi herein has also been bequeathed under the same will certain other properties belonging to the testatrix. The main contention of the appellant is that if, at all Palaniswami, the legatee of lot No. 2 under the will would alone be entitled to question the judicial sale of that lot and not any other legal representative of Karuppakkal. This is a contention, which was not raised either in the counter to the application filed by Amaravathi for setting aside the sale or even in the grounds of appeal preferred by the appellants before the first appellate Court. It is true that during the pendency of the Civil Miscellaneous Appeal the appellants filed an application for reception of the registered will executed by Karuppakkal and the first appellate Court directed the same to be received subject to relevancy and proof. It is not known why the appellants, after getting this favourable order, did not proceed to prove the will or its relevancy. Be it noted that the respondent herein questions the truth and validity of the will as well as the allegation that it was executed in a sound and disposing state of mind. In view of the denial by the respondent of the genuineness of the will, it is not possible for this Court to act upon the contents thereof. Learned Counsel for the appellants says that the matter may therefore be remanded to the Court below and a finding called for upon the genuineness of the will. I think it unnecessary to do so. Even assuming that the will is true and genuine, I fail to see how the mere fact that the will does not bequeath lot No. 2 in favour of Amaravathi would disentitle Amaravathi to institute a petition under Section 47, Civil Procedure Code to set aside the sale in question. It was at the instance of the appellants themselves that Amaravathi was impleaded as one of the 8 legal representatives of the deceased Karuppakkal, the original judgment -debtor. According to Section 2(11), Civil Procedure Code, a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. It is admitted by the appellants themselves that under the disputed will Amaravathi has been given a legacy. She is, therefore, undoubtedly a legal representative of the deceased judgment -debtor. Under Order 21, rule 90, where an immovable property has been sold in execution of a decree, the decree -holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court to set the sale aside on the ground of a material irregularity or fraud in publishing or conducting it. According to the learned Counsel for the appellants Amaravathi is not a person whose interests are affected by the sale of lot No. 2 and consequently she is not competent to maintain the petition to set aside a sale. This contention has to be rejected on two grounds. In the first place, by the sale of any part of the estate of the deceased judgment -debtor in execution of the decree the interest of everyone of the legal representatives of the judgment -debtor is affected directly or indirectly. Even assuming that such a broad construction ought not to be put upon the words " whose interests are affected by the sale" occurring in Order 21, Rule 90, Civil Procedure Code, it must be remembered that the petition filed by Amaravathi was not one under Order 21, Rule 90 but was one under Section 47, Civil Procedure Code. Clause (1) of Section 47, prescribes that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The question raised by Amaravathi by means of her petition is certainly a question arising between a representative of the judgment -debtor, on the one hand, and the decree holder and the auction purchaser, both of whom were parties to the suit within the meaning of Explanation (1) to Section 47, on the other. The nature of the grounds raised by Amaravathi for attacking the judicial sale undoubtedly relate to the legality of the execution proceedings which culminated in the sale. There is nothing in Section 47, therefore, which restricts the benefit of that section to persons whose interests are affected by the sale. The very fact that she is a representative of the judgment -debtor and is there on record as a party to the execution petition enables her under Section 47 to raise any conceivable objection relating to the execution, discharge or satisfaction of the decree. I would therefore hold that Amaravathi being one of the legal representatives of the deceased judgment -debtor and having been impleaded by the appellants themselves as such, it is not open to the appellants to contend that she has no competency to raise by means of her petition any objection in relation to the execution, discharge or satisfaction of the decree. The preliminary objection is, therefore, overruled.