DR. CHERIAN Vs. P. RAMASAMI NAIDU AND ORS.

JUDGEMENT

(1.) THE Appellant before this Court is the Court auction -purchaser. Respondents 1 and 2 are the judgment -debtors and the third respondent is the decree -holder. The third respondent filed a suit O.S. No. 100 of 1968 on the file of the Sub -Court, Coimbatore, on a hundi executed by respondents 1 and 2 (husband and wife) and obtained a decree on 20th June, 1968 for a sum of Rs. 9,777. 70. The third respondent filed E. P. No. 248 of 1968 for attachment and sale of the house belonging to the second respondent situated in Coimbatore. The property was attached and even while the execution petition was pending, the third respondent filed another execution petition E. P. No. 42 of 1969 for attachment, and sale of lands belonging to the first respondent in Selakarichal village, Palladam taluk. The properties were brought to sale and as there was no bidder, the execution petition was dismissed on 29th June, 1970 and the attachment was allowed to continue for a period of six months from that date. On 25th January, 1971, the house property in Coimbatore belonging to the second respondent was sold in Court -auction and the said sale was duly confirmed and part satisfaction was recorded and E. P. No. 42 of 1969 was closed on 27th February, 1971. Soon after the filing of E. P. No. 42 of 1969 and long before the property belonging to the second respondent was brought to sale, the third respondent filed E. A. No. 42 of 1969 on 6th January, 1969 for transmitting the decree to the Sub -Court, Dindigul for execution on the ground that the first respondent owned certain properties in that Court's jurisdiction. Transmission was ordered on 8th January, 1969 without notice to respondents 1 and 2. After transmission the third respondent filed E. P. No. 67 of 1969 for attachment and sale of the Ginning Factory with its machinery and the adjoining land belonging to the first respondent. The properties were duly attached without notice to respondents 1 and 2. The properties were not sold for want of bidders. The E. P. was dismissed on 20th March, 1970, keeping the attachment pending. The third respondent filed another E. P. No 46 of 1970, on 18th April, 1970. Notice under Order 21, Rule 66, Civil Procedure Code, was ordered and no personal service was affected on respondents 1 and 2. On 21st July, 1971, the Ginning Factory, machinery and the adjoining land were sold for Rs. 64,500 to the appellant. Part satisfaction was entered and the E. P. was dismissed on 4th December, 1972. The first respondent filed E. A No. 345 of 1971 in the Sub -Court, Dindigul under Order 21, Rule 90, Civil Procedure Code to set aside the sale on the ground of material irregularities in the publication and conduct of the sale. The first respondent furnished security which was rejected on being tested. The matter was not further pursued and the first respondent filed E. A. No. 614 of 1972 under Section 47, Civil Procedure Code, for a declaration that the Court sale of the ginning factory, machinery and the adjoining land on 21st July, 1971 was void.

(2.) BEFORE the executing Court it was contended that simultaneous execution taken out against the first respondent in both the Courts one at Coimbatore and one at Dindigul without notice is bad in law, and the sale of the machinery, ginning factory and adjoining land without notice to the first respondent is invalid and inoperative, and as the judgment -debtors' valuation had not been disclosed in the sale proclamation, the sale is liable to be set aside.

(3.) THE executing Court held that simultaneous execution as contemplated in the Code of Civil Procedure is the execution levied both against the property and person of a judgment -debtor and not proceeding in execution taken out against different properties of the same judgment -debtor, and proceedings taken by the third respondent decree -holder in both the Courts are valid in law and they would not vitiate the Court auction sale of the ginning factory and machinery and adjoining land belonging to the first respondent. The executing Court further held that there was no fraud or irregularity in the conduct of sale. Against the order of the executing Court there was an appeal to the District Court and the learned District Judge held -