VENKATESWARA ETTU NAICKER Vs. AYYAMMAL

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Tuticorin in C. M. A. No. 8 of 1945 allowing the appeal against the order of the District Munsif of Koilpatti in E. A. No. 233 of 1944 in O. S. No. 186 of 1939. The appellant is defendant 2, defendant 1 being the father. In execution of a mortgage decree in O. S. no. 186 of 1939 the properties of defendants 1 and 2 were brought for sale. Sale was held on 15th September 1943, respondent 1 here being the auction purchaser. The sale was confirmed on 18th October 1943. On 24th February 1944 the appellant filed an application under Section 47 and Order 21, Rule 90, Civil P. C., for setting aside the sale held on 15th September 1943. The grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2) that there was no publication of the sale proclamation in the village as required by Order 21, Rule 67, Civil P. C., and (3) that the properties were grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low upset price fixed for the properties and that as a result of the undervaluation and fraud the petitioner has sustained substantial injury, in that the properties worth several thousands have been sold for an inadequate and low price of Rs. 269. The learned District Munsif who heard the application held that the sale was vitiated by fraud and irregularity, that there was no proclamation of the sale in the village and that the properties were grossly under-valued and therefore allowed the application and set aside the sale. On appeal the learned Subordinate Judge remanded the application for finding on certain matters. That order of remand was taken up in appeal to this Court in C. M. A. No. 694 of 1945 and Chandra-sekhara Aiyar J. directed a further remand to the Subordinate Judge for a finding as to whether there was a proper proclamation or not and on the question of absence of notice and undervaluation. The learned Subordinate Judge did not take any further evidence, but on the material on record proceeded to record findings on the three points referred to him. The learned Subordinate Judge found that even though notice was not personally served upon the appellant, he must have been kept informed of the proceedings by his father who is defendant 1 in the case. As regards proclamation he held that there was no due proclamation. Regarding under-valuation he was of opinion that the valuation fixed by the Court was not grossly inadequate and observed that it followed from the findings that the appellant has not suffered substantial injury on account of the irregularity in the matter of publication. He also held that the petition was barred by limitation. The appeal against the order setting aside the sale was allowed. This C. M. S. A. is against the said order.

(2.) Mr. Ramaswami Iyer, counsel for the appellant mainly contended that in view of the findings of both the Courts that there was no proclamation, the sale held in such circumstances is void and is illegal and this is not a case where in the publication and conduct of the sale there were material irregularities on which an application under Order 21, Rule 90 could be made. He argued that the application was under Section 47 and the making of the proclamation being prior to the sale, the application must be deemed to be one under Section 47 and not under Order 21, Rule 90, Civil P. C. There are concurrent findings of fact of both the learned District Munsif and the Subordinate Judge that there was no proclamation of sale. The learned District Munsil finds that there has been no publication of sale proclamation as required by Order 21, Rule 67 read with Rule 54 (2), while the Subordinate Judge holds that after examining the evidence that there has been no due proclamation. In the affidavit of the process-server who is alleged to have made the proclamation, EX. D 8, it is stated as follows :

(3.) It has, therefore, to be considered whether a sale held without a proclamation as required under Order 21, Rule 66 could be said to be valid and not void. There is the Bench decision of this Court in Jayarama, Iyer v. Vridhagiri Aiyar, 44 Mad. 35 : (A. I. R. (8) 1921 Mad. 583), where it was held that :