NACHIMUTHU CHETTIAR AND ANR. Vs. MOORTHAMMAL

JUDGEMENT

(1.) THIS Civil Miscellaneous Second Appeal arises out of an order passed by the executing court under Section 47 of the Code of Civil Procedure declaring the sale held on 25th June, 1973 in E.P. No. 135 of 1972 to be void and without jurisdiction, which has been affirmed by the lower appellate Court.

(2.) THE first appellant herein obtained a mortgage decree against the respondent herein in O.S. No. 546 of 1964 on the file of the Court of the District Munsif, Udumalpet. Thereafter he applied for the sale of the hypotheca. The respondent appeared by a lawyer in the said execution proceedings. By an order dated 6th June, 1972 the sale of 4.37 acres of the respondent's lands was ordered to be held on 7th August, 1972. As there were no bidders on that day, an application was filed by the decree -holder for reduction of the upset price, and the upset price was actually reduced to Rs. 17,000 in the said application and the sale, was ordered to be held on 21st November, 1972. Even on that day there were no bidders and the decree -holder again filed another application to reduce the upset price and the upset price was reduced to Rs. 9,000 and the sale was fixed to 12th March, 1973. Even on that day there were no bidders and the decree -holder again came forward with an application to reduce the upset price and the upset price was actually reduced to Rs. 5,000 and the sale was directed to be held on 25th June; 1973. The decree -holder at this stage filed an application for permission to bid and set off and the said permission was granted on 24th April, 1973. At that stage the respondent filed an application E.A. No. 960 of 1973 under Section 20 of the, Tamil Nadu Act IV of 1938 for stay of the execution for the purpose of enabling her to file an application for relief under the said Act. The said application was returned on 23rd June, 1973 for production of the necessary documents to show that the petitioner is an agriculturist. The said application was represented on 25th June, 1973 the date fixed for sale. The executing Court has passed the following order in the said petition:

(3.) THE learned Counsel for the appellants contend that the view taken by the Courts below that the sale held in this case was without jurisdiction cannot be sustained in law, that Section 20 of the Tamil Nadu Act IV of 1938 does not affect the jurisdiction of the executing Court to execute a mortgage decree by the sale of the hypotheca and that the more pendency of an application under Section 20 does not take away the said jurisdiction of the executing Court to execute the decree. According to the learned Counsel, there is a clear distinction between an irregularity and an illegality, that if at all the sale in execution of the decree without finally disposing of the application under Section 20 will only amount to an irregularity and that it will not amount to an illegality which will go to invalidate the sale. It is also contended by the learned Counsel that though Section 20 uses the word shall, it cannot in any sense be treated as mandatory, that on a correct interpretation of the said provision it should be taken only to be directory and that the provisions of the Tamil Nadu Act IV of 1938 not having invalidated specifically the orders passed in violation of Section 20, it should be taken that Section 20 is only directory and not mandatory.