KOTHAYADATH KARUNAKARAN NAIR Vs. METHALAYIL CHATHU

JUDGEMENT

(1.) THIS is a petition to revise and set aside the order of the Subordinate Judge of South Malabar in A.S. No. 130 of 1952 on his file, reversing the order of the District Munsif in E.A. No. 74 of 1949 (E.A. 1126 of 1949) setting aside the sale held in E.P. 11 of 1949 and dismissing the petition filed by this petitioner, Karunakaran Nair, under Order 21, Rule 90, Civil Procedure Code, to set aside the sale.

(2.) THE short ground taken by Mr. Gopalan Nambiar for the petitioner, Karunakaran Nair, was that both the lower Courts below had agreed that there was no satisfactory evidence to show that the mandatory notice under Order 21, Rule 66, Civil Procedure Code, had gone to this judgment -debtor before the sale proclamation was drawn up or made, and that the absence of service of such mandatory notice on him would amount to an illegality and would make the sale null and void, especially when this was not a case of execution more than two years, after the date of the decree and notice under Order 21, Rule 22, Civil Procedure Code, would be required. Both the lower Courts have, however, found that this petitioner, the judgment -debtor, had notice, Exhibit B -8, regarding the petition of the decree -holder for permission to bid, and that he had refused to receive the notice. It was also held by the lower appellate Court that the sale proclamation was affixed to his property and that the petitioner must have been aware of it. The learned Subordinate Judge, therefore, held that, at best, the failure to issue notice under Order 21, Rule 66, Civil Procedure Code, to the petitioner before drawing up the proclamation was only an irregularity and that the irregularity had not caused any injury, let alone substantial injury to the petitioner, because he was aware of the decree -holder's petition for permission to bid and the sale proclamation and the sale. He also held that, there being no nullity but only an irregularity, the petition was barred by limitation under Article 166.

(3.) MR . Kuttikrishna Menon for the decree -holder cited five rulings of this Court and some rulings of Nagpur and Lahore High Courts, holding that mere failure to issue a notice under Order 21, Rule 66, Civil Procedure Code, to the judgment -debtor would be a mere irregularity and would not by itself, vitiate the sale and make it null and void, or affect its validity. A Bench of this Court consisting of Old field and Seshagiri Aiyar, JJ., has held in Neelu Neithiar v. Subramania Moothan : AIR 1921 Mad 583 as follows: