(1.) THIS Full Bench has been constituted to resolve the conflict of observations in bench decisions of this Court concerning the effect of non-compliance with the provisions of Order 5, Rule 19, Civil P. C. relating to the service of summons.
(2.) THE reference arises out of an application, E. A. 120 of 1960, filed by one parasurama Odayar, the judgment-debtor in O. S. 10 of 1956 on the file of the district Munsif, Ami, to have it declared that the execution sale of his property which took place on 22-7-1959, in execution of the said decree was null and void. The property which was sold was about three acres in extent with a well and electic motor pump set. A sum of about Rs. 500 was due on the security of the property to the Government in respect of a loan which had been taken. The property was sold for a sum of Rs. 11 subject to the above encumbrance and the purchaser was one Seshadri Iyengar, the second respondent in E. A. 120 of 1960, the notice of sale sent by registered post was returned as refused and the subsequent notice sent through the Court for the hearing on 19-1-1959 is said to have been affixed to the outer door of the house of Parasurama Odayar on 26-121958 by the process server on account of the absence of Parasurama Odayar from the village. On 19-1-1959 the notice in the execution petition was as follows-"respondent absent, Court notice affixed. Respondent called, absent. Set ex parte. " the sale was fixed on 18-3-1959. It finally took place on 22-7-1959 and was confirmed on 28-8-1959.
(3.) PARASURAMA Odayar alleged that he came to know of the sale only on 20-1-60 and he filed the application E. A. No. 120 of 1960 on 22-1-60 to have the sale set aside. He averred that he had no notice whatever of the sale and that the sale conducted without notice to him was void. He claimed that the property was worth rs. 10,000 initially, the upset price was Rs. 9,000 subject to the encumbrance of rs. 500 and urged that the sale was conducted fraudulently and with a material irregularity and had resulted in substantial injury to him. The application was resisted by the auction purchaser. The learned District Munsif, who enquired into the petition, rejected his contentions and dismissed the petition. The judgmentdebtor's appeal to the learned District Judge also failed. The Courts below found that he had notice of the sale, that there was sufficient compliance with the provisions of Order 5, Rule 19, Civil P. C. , that since he had notice of the sale, he had to set aside the sale within 30 days under Article 166 of the Limitation Act, 1908, and that the sale could not be said to be void. The judgment-debtor preferred A. A. A. O. 5 of 1962 and it came on for hearing before Kailasam, J,
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