KASI VISWANATHAN CHETTY Vs. ASPLSSOMASUNDARAM CHETTY

JUDGEMENT

(1.) This Appeal is against an order refusing to set aside a sale in execution of a, money decree against the appellant first defendant and other members of his family.

(2.) The lower Court was asked to set aside the sale on several grounds. Only one argument has been attempted here, that the sale is bad for want of notice to appellant as required by Order XXI, Rule 22, Civil Procedure Code. The necessary facts are that a decree passed on 8th August 1912 by the Chief Court of Lower Burma was transmitted to the Ramnad District Court in May 1914 and thence to the Ramnad Sub-Court. It was returned to the Ramnad District Court; the application for execution there was treated as one for transfer to the lower Court, Sivaganga Sub-Court, and the decree and execution petition, by a possibly lax procedure to which however no objection is taken at present, were transferred accordingly. In the lower Court the present proceedings followed. It is admitted by the respondent that there was no notice of the proceedings in the Lower Burma Chief Court, and no notice of other proceedings has been proved. The question is whether this renders them and in particular the latest proceedings in the lower Court, invalid. Is there an illegality established or merely an irregularity? In the latter event the Appeal must fail, because the lower Court has found in its judgment, paragraph 27, that the price realized was not inadequate and that finding against substantial loss to the appellant has not been attacked.

(3.) An attempt has been made to argue that absence of notice can be justified with reference to Rule 22, Clause (1) proviso, because rateable distribution was once allowed in the Ramnad Sub-Court by an order adverse to the appellant on 20 February 1916 and although that order was set aside by the High Court, rateable distribution was again allowed by the Coimbatore District Court on 16 January 1917. But these adverse orders are not within one year of the present application for execution contemplated by the proviso. For the present application (Execution Petition Application No. 1100 of 1918) was presented on 12th November 1918. It was for sale after a previous application for sale had become inoperative owing to the respondent's failure to produce an. encumbrance certificate and had been dismissed, the attachment being maintained. Much less are these orders within the one year, if on the view most favourable to the respondent, the date of presentation of the original application for execution in the Ramnad District Court is taken as 9 April 1918.