PANDRANGI LINGESWARARAO Vs. DUKKIPATY VENKATASUBBARAO

JUDGEMENT

(1.) C.M.A. No. 542 of 1959 and C.R.P. No. 2076 of 1959 arise out of E.A. No. 563 of 1954 and I.A. NO. 21 of 1954 respectively, filed in O.S. No. 127 of 1930 (on the file of Sub-Court, Masulipatnam) for the restitution of the properties and for ascertainment of profits by the decree-holders (respondents herein). It appears that one Ramappa was the original owner of the properties. He had four sons. The family owned about 200 acres of land at Doddipatla, Kondur Ramavaram, Pallevada, Vemavarappadu and Tamirisa. In 1914, two of the four brothers executed a mortgage deed in favour of the plaintiff's father for a sum of Rs. 13,000. In 1925 they executed a promissory note in favour of the plaintiffs' father for a sum of Rs. 4,000. On the basis of the promissory note, the plaintiff filed a suit O.S. No. 127 of 1930 on the file of the Court of the Subordinate Judge, Masulipatnam, for the recovery of the amount due under the promissory note and obtained a decree on the 9th March, 1931. Under the decree the amount due was made recoverable personally from defendants 1 and 2 and from the family properties of all other defendants. In the suit two of the sons of the fourth brother Triyambaka Rao (2nd defendant) who were minors, were defendants 8 and 9 and they were represented by their father the 2nd defendant as guardian. After the decree the and defendant and the minors (defendants 8, 9 and 10) were represented by their mother as guardian in the execution proceedings. On the 17th July, 1936, the decree-holder filed an application for attachment and sale of the immovable properties belonging to the family. The decree-holder also filed another application to declare defendants 8 to 10 as major son the 6th August, 1936, and notices were issued to them. The notices were returned with an endorsement that the said defendants were still minors. On 9th November, 1936, the learned Subordinate Judge gave time to the decree-holder to ascertain whether they were majors or minors, but no information was furnished and no steps were taken to serve on the said defendants notices under Order 21, rule 22, Civil Procedure Code. Exhibit D-9 (a) shows that the sale proclamation notice was served on defendants 7 and 8, but it was not served on defendants 9 and 10 as they were not present in the house. The decree-holder filed E.A. No. 8 of 1939 for permission to bid at the sale and Exhibit D-10 the notice of that application, was returned with an endorsement that defendants 8 to 10 refused to receive the .same. On 13th February, 1939, the 7th defendant filed an application asking for an adjournment of the sale and that was granted. The sale was held on the 13th March, 1939, and the properties situate in the aforesaid villages were purchased by the decree-holder. On the 26th June, 1939, two petitions were filed by some of the judgment-debtors for setting aside the sale. These petitions having been returned, were not represented. The decree-holder obtained delivery in July, 1942. On 4th December, 1942, defendants 8 and 10 filed E.A. No. 1035 of 1942 under sections 47, 151 and Order 47, rule 1, Civil Procedure Code for a declaration that the sale held on 13th March, 1939 was void and for setting aside the same and also the delivery of 1942. The sons and the widow of the 4th defendant, Bhaskara Rao, filed E.A. No. 44 of 1944 dated the 29th November, 1943, under section 47, Civil Procedure Code, for redelivery of the properties allotted to the share of Bhaskara Rao on the ground that as Bhaskara Rao became insolvent, the decree-holder brought to sale only the three-fourth share of the properties. In the petition filed by defendants 8 to 10 they pleaded that the sale was void as, though defendants 8 to 10 were minors, they were treated as majors and no notice under Order 21, rule 22, Civil Procedure Code was served on them. They also alleged that the sale was vitiated by material irregularities and fraud of the decree-holder which resulted in substantial loss to them as according to them, properties worth a lakh and twenty thousand rupees were sold for a low amount of Rs. 12,424 subject to a mortgage in favour of the decree-holder. They asserted that the application, though filed more than three years from the date of the sale, was in time because they were kept out of the knowledge of the right to apply for setting aside the sale by reason of the fraud practised by the decree-holder against them. They also stated that as the sale was a nullity, the right to apply accrued to them only when an attempt was made to dispossess them. The decree-holder filed a counter mainly contending that the application was barred by time, that the sale was valid as notice under Order 21, rule 22, Civil Procedure Code, was served on the 7th defendant Who was the manager of the family, and as the interests of the other members were represented by the 7th defendant and other members of the family. He also pleaded that he did not perpetrate any fraud upon the judgment-debtors, but brought the property to sale after giving every opportunity and indulgence to them to settle the matter or otherwise pay off the decree amount. The learned Subordinate Judge held that the sale was void as notices under Order 21, rule 22 were not served on defendants & to 10 that the sale was also vitiated by fraud and material irregulatiries which resulted in substantial injury to the judgment-debtors and that the suit was in time. In the result, he set aside the entire sale. In E. . No. 44 of 1944 he directed redelivery of the properties claimed in that petition. According to the decree-holder, as a result of this order the property was redelivered to the judgment-debtors. Against this order of the learned Subordinate Judge, the decree-holder preferred two C.M.As. Nos. 614 and 634 of 1946. These C.M.As. came up before a Bench of the Madras High Court consisting of Justice Subbarao (as he then was) and Justice Panchapakesa Ayyar and it was held therein that, (1) notice under Order 21, rule 22 of the Code of Civil Procedure is a necessary condition for conferring jurisdiction upon the executing Court to sell the judgment-debtors' properties and a sale without such notice is a nullity; (2) If the initial notice under Order 21, rule 22 was served on the parties, the sale would not be void even though at the later stages notice was not served on all the parties; (3) If as a matter of fact the estate was sufficiently represented by one of the parties, the sale would be valid if the notice under Order 21, rule 22 was served on a person who was held by the Court to be the lepresentative of the deceased party, even though it subsequently turned out that he was not the real or only representative of the deceased party; and (4) After a decree is passed, the question of representation of a party is no longer governed by Hindu law but by the relevant provisions of the Code. It was also held that where minor defendants were represented during the pendency of the suit by the father and after his death after a decree was passed, by their mother and no notice was served on them represented by their mother, but only on another maj or defendant who was the elder brother of the minor defendants, who have represented by minor brothers, so far as the minor defendants are concerned, the sale of their share of the family properties in execution of the decree is a nullity and it is open to them to ignore it. The period of limitation is governed by Article 181 and they need not take note of the void sale till their possession was effectively interfered with. Holding so, the learned Judges partly allowed C.M.A. No. 634 of 1946 and dismissed G.M.A. No. 614 of 1946. In the last para, of the Judgment, the learned Judges observed:

(2.) After the disposal of these appeals, on 3ist January, 1952, the 13th defendant (who was 9th respondent in C.M.A No. 634 of 1946) filed a suit, O.S. No. 21 of 1952, on the file of the District Munsif's Court, Gudivada for an injunction restraining the decree-holder from executing the exparte decree. That suit was decreed. In the meantime, on 12th July, 1950, E.A. No. 1035 of 1942, which was dismissed, was restored to file as per the directions of the High Court but it was closed on 4th October, 1952, with an observation that it was without prejudice to the rights of the parties to get these properties partitioned in a separate and appropriate proceeding.

(3.) Thereafter, the decree-holder filed E.A. No. 563 of 1954, for redelivery of the properties as per the directions of the High Court after partition under sections 144. and 151, Civil Procedure Code. The judgment-debtors resisted this petition on various grounds, viz., that the petition was not tenable under sections 144 and 151, Civil Procedure Code, that the High Court could not reverse the decree in the exercise of its power under Order 41, rule 33, that the application was a second application for delivery which was not permissible in law and that a regular suit should be instituted for general partition and proceedings cannot be taken under sections 144 and 151, Civil Procedure Code, and that the judgment in O.S. No. 21 of 1952 having become final no order for redelivery could be passed. The decree-holder also filed I.A. No. 21 of 1954 for ascertainment of mesne profits. This petition was also resisted by the judgment-debtors. The learned Subordinate Judge repelled all the contentions of the judgment-debtors and allowed both the petitions E.A. No. 563 of 1964 and LA. No. 21 of 1954. Hence C.M.A. No. 542 of 1959 against the order allowing E.A. No. 563 of 1954 and C.R.P. No. 2076 of 1959 against the order allowing I.A. No. 211 of 1954.