CHAKKA CHINA SATTIRAJU Vs. AJJARAPU VIRAYYA

JUDGEMENT

(1.) The Subordinate Judge erred in setting aside the sale in favour of the appellant. On the 2nd October, 1934, the decree-holder (the third respondent) applied for the execution of her decree and on the 5 February, 1936, the property belonging to the judgment-debtors was sold. Within the time allowed by law the mortgagee of the property sold deposited the decretal amount, plus the solatium, and on the 17 March, 1936, the sale was set aside. The decree was for the payment of Rs. 300 per annum for the maintenance of the decree-holder. This sum was payable in two instalments, the first instalment on the 1 April and the second instalment on the 1 October in each year. On the 1 October, 1936, the decree-holder filed an application for the execution of her decree in respect of the instalments which fell due on the 1 April, 1935, 1 October, 1935, 1 April, 1936 and 1 October, 1936. The application was not in order and was returned to the decree-holder for amendment. It was taken on the file on the 2nd November, 1936, and on the 6 November notice was issued for the settlement of the sale proclamation. The sale was effected on the 28 June, 1937, and confirmed on the 7 August, 1937. On the 8 February, 1938, the first respondent (one of the judgment-debtors) and his brother, the second respondent applied for an order setting aside the sale on the. ground that no notice had been given under the provisions of Order 21, Rule 22 of the Civil P. C., as more than one year had elapsed from the date of the decree. The Subordinate Judge accepted this contention and ordered the sale to be set aside. The appeal is from this order and has been preferred by the purchaser at the auction.

(2.) The attention of the Subordinate Judge was not drawn to the fact that when the second application for execution was taken on the file, Rule 22 of Order 21 had been amended by this Court. The amended rule came into force on the 20 October, 1936. The old rule provided that where an application for execution was made more than one year after the date of the decree or one year after the date of the last order on a previous application notice should issue to the judgment-debtor to show cause why the decree should not be executed against him. The rule further provided that nothing in Sub-rule (1) which contained the provisions referred to, should be deemed to preclude the Court from issuing process in execution of a decree without issuing the notice prescribed by Sub-rule (1) if, for reasons to be recorded, it considered that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. The omission to comply with the provisions of Sub-rule (2) was considered sufficient justification for setting aside a sale. The old rule was considered to work unfairly and this Court amended it in two respects under powers conferred upon it by the Code. In the first place it altered the period of one year to two years. It further provided that the omission to comply with the requirements of Sub-rule (2) should not make an order for the execution of a decree invalid unless the judgment-debtor had sustained substantial injury as the result of the omission.

(3.) The second application for execution in this case was governed by the amended rule; and as two years had not elapsed from the 17 March, 1936, it was not incumbent upon the Court to issue notice to the judgment-debtors to show cause why the decree should not be executed against them. The Subordinate Judge considered that one year should be deemed to run from the 1 April, 1935, when the first of the outstanding instalments fell due, and it was on this ground that he allowed the objection to the execution. We do not consider he was justified in taking this date as the starting point. The proper date was the 17 March, 1936. In any event the new application for execution was within two years of the 1 April, 1935. Consequently the appeal must be allowed with costs against the first and second respondents.