ARUMUGAM PILLAI Vs. KRISHNASWAMI 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 Vathiar (1916) I.L.R. 40 Mad. 233 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 so far as appears from its authorised reports, only in one case, Rama Aiyar v. Srinivasa Pattar (1896) I.L.R. 19 Mad. 230 the decision of a single Judge ; and I do not think that the decision in Chidambaram Chettiar v. KrishnaVathiar (1916) I.L.R. 40 Mad. 233. 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. This objection is pressed here in the shape of a contention that the whole proceedings from and including 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. But on the assumption which at present rests on mere assertion, that the purchaser was a party to that fraud, there is still the fact 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 have been 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 unsustainable.

(3.) The appeal against Appellate order is dismissed with costs. The Civil Revision Petition is dismissed: no order as to costs. Seshagiri Aiyar, J.