ARUMUGAM PILLAY Vs. KRISHNASAWAMI NAIDU

JUDGEMENT

(1.) On the question whether, effect has been wrongly refused to the arrangement made before decree, I observe that Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 : 40 M. 233 : 21 M.L.T. 24 : 6 L.W. 132 : (1917) M.W.N. 44 : 32 M.L.J. 13 dealt with an arrangement to postpone execution, not with one, such as is pleaded here, for the decree being treated as in part inexecutable. An arrangement of the latter description has received effect in this Court, as far as appears from authorised reports, only in one case, Rama Ayyan v. Sreenivasa Pattar 19 M. 230 : 5 M.L.J. 218 : 6 Ind. Dec. (N.S) 865, the decision of a single Judge; and I do not think that the decision in Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 : 40 M. 233 : 21 M.L.T. 24 : 6 L.W. 132 : (1917) M.W.N. 44 : 32 M.L.J. 13 obliges us to extend the principle to the extent required by appellant s contention.

(2.) The other objection to the sale is that it was obtained and carried through by a person having no authority from the decree holder in the matter. The objection is pressed here in the shape of a contention that the whole proceedings from and in-eluding the final decree were taken without notice going to appellant or the judgment-debtor and that they, therefore, were vitiated by fraud and cannot be sustained. Bat on the assumption, which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fast that the absence of notice to appellant or the debtor was never distinctly alleged or, so far as appears, relied on in the lower Courts or in the grounds of appeal here. In fact, so far as we are able to test this case, by reference to the final decree, we observe that the mention in it of the judgment-debtor as absent is ground for a presumption that he had had notice and disregarded it, and then his remedy was by proceedings to have that decree set aside. This objection also to the lower Appellate Court s decision is, therefore, untenable,

(3.) The appeal against appellate order is dismissed with costs. The civil revision petition is dismissed; no order as to costs. Sheshagiri Aiyar, J.