RAMANATHAN CHETTY MINOR BY GUARDIAN ALAGAMMAI ACHI Vs. KASI VISVANATHAN CHETTI AND ARUNACHALAM CHETTI

JUDGEMENT

(1.) The facts have been set out in the judgment of my learned brother and it is unnecessary for me to repeat them. The petition put in by the 1st defendant s sons to set aside the Court auction sale is filed by them not on the ground that they are also parties to the decree (in which the sale was held), as represented by their father the 1st defendant, but as independent persons who owned shares in the property sold and who are entitled in consequence to file a petition under Order XXI, Rule 90 (old Section 311) to set aside the sale on the ground of material irregularity and consequent substantial injury. I agree with the lower Court in its conclusion that there was no material irregularity in publishing and conducting the sale except that the sale was conducted and concluded after the High Court s order of stay which is, of course a very material irregularity. No substantial injury is proved to have been caused by any such material irregularity. The property was estimated by the Amin as worth only 56,000 and odd rupees and it was sold for 68,000 and odd rupees.

(2.) The first defendant from his conduct in these execution proceedings has clearly proved himself to be a cunning litigant and the affidavit produced on his behalf is not reliable even though supported by a telegram from one Palaniappa Chetti who has not been examined. The want of bidders, I am inclined to hold was due to the litigious nature of the 1st defendant who had set up his mother-in-law to file claim petitions on behalf of his (the 1st defendant s sons) to bring a suit on their behalf, to put in a revision petition on their behalf against the claim order and to do several other acts, more in order to delay and defeat the decree-holder than with the bona fide object of prosecuting any tenable claim. Purchasers will naturally be chary of making bids for the property belonging to the 1st defendant and his sons, as they are sure to purchase a protracted litigation along with the property. A.A.O. No. 210 of 11 in which the first defendant s sons are the appellants must therefore in my opinion be dismissed. The parties will bear their respective costs.

(3.) Coming to A.A.O. No. 211 of 11, this appeal arises out of a petition filed under Section 47, C.P.C. and also under Order XXI, Rule 90 by the 1st defendant himself. So far as his application to set aside the sale is grounded on irregularity and substantial injury under Order XXI, Rule 90 it cannot be granted for the reasons already set out by me in A.A.O. No. 210 of 11. The contention under Section 47 of the C.P.C. is based on the following facts: The first defendant s sons put in a claim petition for release of their shares in the attached houses.