KAMATCHI AMMAL Vs. S KARUNAKARAN

JUDGEMENT

(1.) The legal representatives of the decree holder in O.S. No. 234 of 1971 have filed the above revision, aggrieved against the order passed by the learned District Judge, Cuddalore in C.M.A. No. 48 of 1990, dated 24.9.1991, setting aside the order passed by the Sub-Court, Cuddalore in E.A, No.880 of 1986 in E.P. No. 64 of 1984 in O.S. No. 234 of 1971, filed under Order 21, Rule 90 of the Code of Civil Procedure, by the second defendant to set aside the sale.

(2.) One Kamatchi Ammal filed the suit on mortgage in O.S. No. 234 of 1971 on the file of the Sub-Court, Cuddalore and obtained a decree on 28.2.1973. The auction sale was held on 25,8.1986. To set aside the said sale, the second defendant filed the application in E.A. No. 880 of 1986, under Order 21, Rule 90 of the Code on the ground that no notice was served on him in the Execution Petition and so the further proceedings cannot be sustained and the same has to be set aside. According to the second defendant, his date of birth is 7.6.1957 and he bacame major as early as on 7.6.1975. It is the case of the second defendant that having impleaded him as a party in the suit and in the execution petition, Since no notice was served on him, the proceedings in the execution petition cannot be sustained in law and the same has to be set aside. The Executing Court rejected the application on the ground that notice was served on the first defendant who is his father and so the sale need not be set aside for the reason that notice was not served on the second defendant separately.

(3.) Aggrieved against the same, the second defendant who is the first respondent herein filed appeal in C.M.A. No. 48 of 1990. The lower Appellate Court accepting the case of the first respondent herein allowed the appeal and set aside the sale. Still aggrieved, the legal representatives of the decree holder have filed the above revision.