VASAMSETTI SWAMI Vs. (GUNDALATTULLA) TATAYYA

JUDGEMENT

(1.) As against an order passed by the Subordinate Judge of Amalapuram refusing to set aside a court-sale and confirming the sale, this civil revision petition and also the civil miscellaneous second appeal have been filed. The petitioners are the two minor sons of the deceased Rama Jogi who was one of the sons of the judgment-debtor Vasamsetti Swami. In the course of the execution proceedings against the four sons of the judgment-debtor, one of them, viz. Rama Jogi, died. The other three sons continued to be on record. In the place of the deceased Rama Jogi, his minor son was sought to be added as his legal representative and a petition for the appointment of his mother as his guardian was also put in. In respect of that petition, notices were taken out thrice to the proposed guardian, but as she could not be served personally, the Court seems to have dismissed that petition and the decree-holder thereupon filed another petition for the appointment of a Court officer as guardian, and that was granted. The execution proceedings were then continued which eventually resulted in a sale of the attached properties being effected. In order to have that sale set aside, the aforesaid minor, and another son of Rama Jogi who was not brought on record at all, have filed the present petition, alleging various grounds for impeaching the validity of the Court sale.

(2.) There was an elaborate inquiry by the District Munsif who found that the alleged material irregularity in conducting and publishing the sale and the substantial injury by reason of any such material irregularity have not been made out. On the merits he decided the case against the petitioners, who however have thought fit to set aside the sale on two technical grounds, namely, that one of the minor sons of the deceased Rama Jogi, who was brought on record as his legal representative, was not properly represented as the appointment of the Court officer as guardian was not proper and as the other minor son of the deceased Rama Jogi was not brought on record at all. Against that order of the District Munsif an appeal was preferred by the auction-purchaser. The learned Subordinate Judge held that, in spite of the omissions aforementioned in the matter of bringing in the legal representatives of the deceased Rama Jogi, there was sufficient representation in the absence of any fraud or collusion. Some decisions have been relied on by him in support of this view. He held that the proceedings in execution have not been vitiated by any illegality and therefore differing from the view taken by the first Court he upheld the validity of the Court sale and allowed the appeal.

(3.) As regards the first point, I am clearly of opinion that the appointment of the Court officer as guardian of the minor son of Rama Jogi in the circumstances of this case cannot be deemed to be such an irregularity as would justify the Court in holding that that minor was not represented at all. As no person could be appointed as guardian for the minor, unless the proposed guardian was served with notice and also expressed his or her willingness to act as guardian, the Court seems to have thought that the effecting of personal service on the mother who was proposed as guardian could not be done without unreasonable delay and therefore that petition was dismissed. It cannot be said that the dismissal of that petition was due to any default, wilful or otherwise, on the part of the decree- holder. The Court seems to have thought fit to appoint another guardian for the minor and therefore the petition by the decree-holder proposing the Court officer as guardian was granted. I am of opinion that the minor when represented by the Court officer as guardian cannot strictly be deemed to be one who was not represented at all in the eye of the law, however much it would be desirable to have appointed the mother herself as guardian, making some more attempts for effecting personal service on her. The omission to bring on record the other minor son of the deceased Rama Jogi is not, in my opinion, such an irregularity as would vitiate the whole of the execution proceedings. If this omission is proved to be due to any fraud or collusion, then it would be a different matter. It is difficult to hold that the decree-holder was wanting in bona fides in proposing the appointment of a Court officer as guardian of the minor when his petition to appoint the mother was dismissed by the Court. I therefore agree with the Subordinate Judge in holding that these two omissions are not such as would justify us in holding that the sale itself was void on account of these defects.