RAMASWAMI GOUNDAR Vs. MUTHUVEL GOUNDAR AND ANR.

JUDGEMENT

(1.) THIS is an appeal by one Ramaswami Goundar, a judgment -debtor in O.S. No. 244 of 1949 on the file of the District Munsif, Dindigul, against the judgment and decree of the Subordinate Judge, Dindigul, in C.M.A. No. 6 of 1953 reversing the order of the District Munsif, Dindigul, in E.A. No. 222 of 1952, in E.P. No. 381 of 1951, in O.S. No. 244 of 1949, allowing an application of this appellant under Order 21, Rule 90 and Section 47, Civil Procedure Code and setting aside the sale held on 2nd January, 1952, of two kulis and odd of land belonging to the appellant, and charged with a maintenance of Rs. 60 per year, in favour of his step -mother Savadammal, the decree -holder. The facts were briefly these.

(2.) IN O.S. No. 244 of 1949, Savadammal got a maintenance decree for Rs. 5 per month against this appellant, and that amount was charged on a house site and two kulis and odd of land valued in the plaint at Rs. 350, but really worth much more. Savadammal was also allowed to put up a shed on the vacant site and reside therein. That is the house site charged -'with the maintenance. She was also allowed to recover Rs. 70 -13 -0 as the consolidated costs from an amount in Court. The appellant did not pay the maintenance amount. So Savadammal, aided by her relative, the present auction -purchaser Muthuvel Goundar, took steps, and E.P. No. 381 of 1951 was filed for recovering the arrears of Rs. 137 -6 -0 due by then. The two kulis and odd of lands were brought to sale. The notice under Order 21, Rule 66, Civil Procedure Code, was, according to the appellant, not served on him and a false endorsement that he refused the notice was procured by Savadammal and Muthuvel with the aid of the process -server. The tom -tom too was not done. The result was that the appellant did not know that his properties were being brought to sale and actually only one bidder bid at the Court sale, namely, Muthuvel, the relative of Savadammal, and the man who had attested the false endorsement of refusal of the notice under Order 21, Rule 66. I may mention here that the appellant's contention was that the property brought to sale was worth Rs. 4,000 and was got by Savadammal and Muthuvel falsely valued at - Rs. 950 by an amin sent by Court. Muthuvel was the only bidder, and he bid for just a rupee above the upset price fixed by the Court on the amin's valuation. The sale was knocked down in Muthuvel's name, and Muthuvel obtained an order for delivery. It is at this stage of delivery, on 1st April, 1952, to Muthuvel, that the appellant says he came to know of the sale of his land. He therefore filed an application under Order 21, Rule 90 and Section 47, Civil Procedure Code, for setting aside the sale on the ground of fraud in publishing and conducting the sale.

(3.) THE auction -purchaser Muthuvel took the matter on Appeal. The Subordinate Judge, Dindigul, held after once again discussing the evidence; that the sufficiency of the service of the sale notice on the appellant was not proved, though he was not prepared to say that the process -server had not gone to the village at all. Discussing again the contradictory evidence of Suppan Madari, P.W. 3, regarding the tom -tom, he considered that there was tom -toming believing one portion of that man's evidence. He was also of opinion that as the land sold had been bought by the appellant himself for Rs. 900, its sale for Rs. 951 to the auction -purchaser Muthuvel could not be said to be for a low price or to have caused any substantial injury. Finally, he held that there was no adequate proof of material irregularity or substantial injury consequent on it, and allowed the appeal with costs throughout, setting aside the orders of the learned District Munsif. Hence this C.M.S.A.