LAWS(BOM)-1944-12-4

MARUDANAYAGAM PILLAI Vs. MANICKAVASAKAM CHETTIAR

Decided On December 18, 1944
MARUDANAYAGAM PILLAI Appellant
V/S
MANICKAVASAKAM CHETTIAR Respondents

JUDGEMENT

(1.) THIS is an appeal from the judgment and order of the High Court of Judicature at Madras dated September 24, 1941, which, on appeal, modified the judgment and order of the Subordinate Judge of Mayavaram dated February 15, 1939.

(2.) THE question in the appeal is whether a sale of immovable property, including land in the village of Tiruvali, made in execution of a mortgage decree obtained by the respondent against the appellant's predecessor is bad as regards the said land and should be so far set aside under Order XXI, Rule 90, of the Code of Civil (Procedure, 1908, on the ground of material irregularity and fraud in publishing and conducting the sale

(3.) THE position under the prior mortgage appears from exhibit M. M. which is the suit register in the Subordinate Court of Mayavaram of the prior mortgage suit. It appears that in January, 1931, the receiver paid into Court Rs. 3,000 and in September a further Rs. 20,000 and these sums had been paid out to the decree-holder prior to December, 1931. In June, 1932, sales were effected in the prior mortgage suit and sums amounting to Rs. 30,444 were paid into Court and these sums were paid out to the decree-holder in July and August, 1932. In November and December, 1932, there were further sales for sums amounting approximately to Rs. 16,000, and this sum was paid out to the decree-holder by March 4, 1933. THE position therefore is that at the time when the draft proclamation was submitted by the respondent the sum of approximately Rs. 80,000 mentioned therein as due on the prior mortgage (which was correct as the sum originally due) had been reduced by a sum of Rs. 23,000. At the date when the proclamation was approved, namely October 6, 1932, the sum had been reduced by a further Rs. 30,444 ; and at the date of the sale the sum had been reduced by a further Rs. 16,000, making a total reduction of Rs. 69,000.