GOHINTAPALLI VENKATARAMAYYA Vs. NEDUNURI VENKATAMUTHARAO

JUDGEMENT

(1.) THIS is an appeal by the 1st judgment -debtor against the order of the lower appellate court confirming the order of the District Munsif of Amalapuram. by which his application under O. XXI R. 90 and S. 47 C. P. C. to set aside a sale of his properties in execution held on 12 -9 -1955, was dismissed.

(2.) THE concurrent finding by both the courts below is that the sale was not vitiated by any irregularity, nor did the appellant sustain any substantial injury, the price fetched being not too low. These are findings of fact based on an appreciation of the evidence, and are binding in the second appeal. The main point raised by the learned counsel for the appellant is, that there was no proper notice under O. XXI. R. 22 C. P. C. and that the sale is therefore void -Rajagopala Aiyar v. Ramanuja Chariyar, : AIR 1924 Mad 431 (FB). It apears from the notes paper in Execution Petition No. 347 of 1954 that notice under O. XXI. R. 22 was issued to both the judgment -debtors that it was served on both the judgment -debtors by affixture for 21 -12 -1954. that only the second judgment -debtor who is the brother of the first judgment -debtor, appeared, that the first judgment -debtor was declared absent and that the proceedings were continued in the 1st judgment -debtor's absence, as provided under O. XXI R. 23. The learned counsel refers to O. 5 R. 19 and contends that where a notice is affixed the court has to declare the service sufficient, which is not shown in the notes -paper to have been done. But this point is covered by two Division Bench decisions of the Madras High Court in Venkata Rayanim Varu v. China Bapanna : AIR 1940 Mad 213, and Govinda Krishna v. Sankaralinga Naicker, : AIR 1943 Mad 55, where it was held that such a declaration may be implied by the subsequent proceedings of the court in the matter. These decisions were followed by a Single Judge in Adhilakshmi Ammal v. Srinivasa Goundan : AIR 1944 Mad 193 and are binding on this Court. The learned counsel seeks to distinguish the decisions on the footing of the observations of Horwill, J. in : AIR 1944 Mad 193 that

(3.) IT appears that the second judgment -debtor. who is the brother of the first judgment -debtor was living in the same house. As already mentioned, both of them were served by affixture, but while the second judgment -debtor put in his appearance on 21 -12 -1952, the first judgment -debtor stayed away. In these circumstances there is 'prima facie' no reason to think that the service by affixture was reduced to a formal ritual and was not sufficient for the first judgment -debtor's obtaining knowledge of the execution proceedings.