KRISHNAMA NAIKEN Vs. KANDASAMI GOUNDEN

JUDGEMENT

(1.) THE lower appellate court has not found the facts necessary to entitle the decree-holder to re-open the execution proceedings. Section 315 of the Code of Civil Procedure requires that it should be found that the judgment debtor had no saleable interest in the property sold at the time of the sale. THEre is no such finding recorded by the lower appellate court. THE judgment debtor did not admit that he had no saleable interest in Survey Nos. 443 and 460. He asserted the contrary in his memorandum of appeal to the lower appellate court. We must therefore ask the lower appellate court to submit a finding on the question whether the judgment-debtor had a saleable interest in Survey Nos. 443 and 460 on the date of the auction sale. Fresh evidence relating to this question may be admitted. THE finding should be submitted within two months after the reopening of the Court after the recess. Seven days will be allowed for filing objection.

(2.) IN compiance with the order containded in the above judgement the District Judge of Coimbatore subimitted the following finding. My finding on the issue remanded is with regard to Survey No. 460 in the affirmative with regard to Survey No. 443 in the negative.