GHULAM KADIR Vs. MUNICIPAL COUNCIL NEGAPATTINAM

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of a petition filed by defendants 7 and 10 in O. S. No. 355 of 1939 on the file of the District Munsif's Court, Negapatam, to set aside a court sale held on 23rd November 1948 and confirmed on 29th December 1942. Both the lower Courts have dismissed the petition. Hence this appeal.

(2.) The Municipal Council, Negapatam, respondent 1 herein obtained the aforesaid decree for recovery of Rs. 18-1-6 being the arrears of property tax for T. S. No. 155. The decree also gave a first charge over the properly. The property originally belonged to one Vanjoor Animal. Defendants 2 to 10 were impleaded as her heirs and as persons in possession and enjoyment. Defendant 11 was impleaded as he claimed some interest in the property. An ex parts decree was passed in the first instance on 19th April 1940. Defendants 7 to 10 were described as minors represented by guardian, defendant 2. They were, however, majors at the time of the institution of the suit. During the pendency of the suit it appears that defendant 7 was declared a major and the cause title amended accordingly. In execution of this ex parte decree, E. P. No. 419 of 1941 was filed on 6-10-1941 for sale of the property after settlement of proclamation. The sale notice Ex. D. 1 (a) sets out in the cause title defendants 7 to 10 as minors and notice seems to have been served by affixture on the outer door of the house of defendant 2, The property was finally sold and purchased by defendant 2 for Rs. 505. On a petition by defendant 10, I. A. No. 584 of 1948, dated 15th July 1943 to set aside the ex parte decree, the decree was so set aside on 6th March 1944. Defendant 7 also filed a petition I. A. No. 245 of 1944, on 23rd March 1944. He alleged that he became aware of the decree and the court sale only on 9th March 1944. It was his case that the decree itself was obtained fraudulently at the instance of one Jabbar Maracair, a municipal councillor of Negapatam living in a house of his own very near the suit house; and that it was at his instigation and by his machinations, the Municipal Council was made to file the suit and it was for his benefit and benami for him that respondent 2 purchased in court auction. It was further alleged that defendant 6 had died even before the suit and that defendants 7 to 10 who were all majors were purposely described as minors and the suit summons was got served by affixture on the outer door of the house of defendant 2 as guardian for the minors. The entire decree and the sale thereunder are stated to be designedly fraudulent.

(3.) The Court finally passed an order on 2nd April 1945 setting aside the ex parte decree against all the defendants. Along with this petition to set aside the ex parte decree defendants 7 and 10 filed the present petition to set aside the sale under Section 47, Civil P. C. The sale was claimed to be illegal and void; its validity was attacked on various grounds: (1) The decree itself was a void decree, as defendants 7 to 10 who were majors were treated as minors and these was no service of summons even on the guardian; (2) The sale was illegal as even the notice of sale under Order 21 Rule 66, of the Code was served by affixture treating defendants 7 to 10 as minors though they were majors all the time; and they were not served either; (3) the purchase by respondent 2 was really benami for Jabbar Maracair who was responsible for the fraud; (4) the sale was for a very low price, the property being worth not, less than Rs. 2000; (5) the legal representatives of defendant 8 who had died were not brought on record and one Azeez who was one of the heirs was not impleaded at all.