SISTLA RAMAKRISHNA SASTRY Vs. MADDURI SUNDARAMMA

JUDGEMENT

(1.) This appeal is brought by the decree-holder in S. C. No. 635 of 1950 on the file of the Court of the District Munsiff, Masulipatam and arises out of an application made there by the judgment-debtor under Order XXI Rule 90 and Sections 47 and 151 C.P.C. to set aside the sale in execution held on 20-12-1954. The learned District Munsiff dismissed the application on the ground that it was barred by limitation under Article 166, having been, filed on 7-2-1955 after the expiry of the period of 30 days allowed from the date of the sale.On Appeal by the decree-Bolder, the learn-ed Subordinate Judge held following Venkateswara Ettu Naicker v. Ayyammal, AIR 1950 Mad 367 : 1950-1 Mad LJ 22 that in cases where there is no proclamation of sale at all, the sale is void and the application was governed by Article 181, which allows a period of three years. He accordingly found that the sale was void, allowed the judgment-debtors application and set aside the sale.

(2.) In AIR 1950 Mad 367 : 1950-1 Mad LJ 22, Krishnaswamy Nayudu, J. sitting singly held that where there was a total failure to make the proclamation under Order XXI, Rule 66 C.P.C. the defect was not a mere irregularity in the publication or conduct of the sale and it rendered the sale illegal and void. There, the only mode by which the proclamation was alleged to have been made was by the beat of tom tom at the instance of the process-server and the evidence in this respect was disbelieved by the trial court and by the first appellate court.It was not brought to the notice of the High Court that there was proclamation by any other mode and therefore the learned Judge held that there was total failure to make the proclamation. The principle of this decision was followed in Srikakula Chinna Venkatanarayana v. Pannapati Elias, AIR 1954 Mad 1024--by Rajamannar, C.J. sitting singly, who held that where there has been no publication whatever of the proclamation of the sale, there is no valid sale under the Code and the sale is void.The particular facts and circumstances in which it was found that there was Do publication whatever of the proclamation of sale do not appear from the report of the decision. If the facts in the earlier decision form the criterion it may well be doubted whether a purchaser at a Court sale is bound to enquire whether there is unimpeachable or at least reliable evidence of proclamation by beat of tom tom on pain of his purchase being held void.In this connection, I may recall the observation of Lord Hobhouse in Malkarjan v. Narhari, 27 Ind App 216 (PC) that if a purchaser

(3.) The main contention taken by Mr. K. Ramachandra Rao the learned counsel for the appellant is that this is not a case where it can he said that there is no publication of the proclamation whatever. He points out that the District Munsiff has mentioned in paragraph 6 of his order that the proclamation was published in a journal known as Vanitha Vihar, Rajahmundry and that this fact was not adverted to or negatived at all by the learned Subordinate Judge.The learned Subordinate Judge merely dealt with the oral evidence as to the publication by the beat of tom tom in the village and held that there was no such publication. His inference that there was no proclamation at all cannot be correct if the sale was published in the journal, Vanitha Vihar of Rajahmundry, as found by the trial court. Sri K. Madhava Reddy, the learned counsel for the respondent took time to meet the contention, as the ground of publication in the Vanitha Vihar was not mentioned in the memorandum of appeal to this Court.He has also produced a copy of the memo dt. 14-12-1954 filed on behalf of the decree-holder in E. P. No. 246 of 1954, the execution proceedings in which the sale was held. The memo mentions