MINOR SHANMUGHAM CHETTIAR THROUGH GUARDIAN SHANMUGHAM CHETTIAR Vs. NMRAYALOO AIYAR NAGASWAMI AIYAR AND COMPANY

JUDGEMENT

(1.) This appeal is from the order of the learned Subordinate Judge of Madura dismissing an application under Order 21, Rule 90, Civil Procedure Code to set aside a sale of immovable property held in execution. The sale was held on the 13 of July, 1936. The application under Order 21, Rule 90 was presented on the 11 of August, 1936 and was disposed of by the learned Subordinate Judge on the 16 of November, 1937. The learned Subordinate Judge held that there were no material irregularities or fraud established in the case and that therefore the application to set aside the sale could not be allowed. He dismissed it accordingly.

(2.) We have heard a very lengthy argument from Mr. K.S. Ramabhadra Aiyar on behalf of the appellant, the 2nd defendant in the suit, O.S. No. 114 of 1925. The appellant is the son of the 1 defendant in the suit and the suit was filed on a mortgage executed by the first defendant who represented when he took the money from the lender that the hypotheca was his self-acquired property. The learned Subordinate Judge held that the hypotheca was not the self-acquired property of the first defendant but joint family property. The suit was dismissed against the second defendant ; but, on appeal to the High Court by the plaintiff, the High Court passed a personal decree for money against the second defendant also, and indicated in its decree that the plaintiff could recover against the second defendant by proceeding in execution against his share of the joint family property. The present application for sale is in respect of four items of joint family property which were attached in execution of the decree.

(3.) The hearing of this appeal has been considerably complicated by the fact that learned Counsel for the appellant has chosen to abandon all the grounds of irregularity and fraud which were alleged in the application to the lower Court under Order 21, Rule 90. He no longer contends that the sale was vitiated by any irregularity or fraud in the conduct of the sale. What he contends now is that the sale was ab initio illegal and therefore void; in other words, he says that the application to the lower Court ought not to have been an application under Order 21, Rule 90, as in fact it was, but that it ought to have been an application under Section 47, of the Civil P. C.. We have therefore heard no arguments with regard to the usual allegation under Order 21, Rule 90, namely, that there was no proper tom-tom or that there was combination preventing adequate bidding or that there was no proper advertisement of the sale; nor have we heard arguments on the point that the sale was adjourned without specifying the hour of the date to which it was adjourned or on the allegation that the encumbrances had not been properly mentioned. Learned Counsel for the appellant has devoted his arguments entirely to an attempt to show that the attachment itself and the sale in pursuance of it were illegal.