AVUDAINAYAGAPPA PILLAI Vs. SUNDARANANDAM PILLAI

JUDGEMENT

(1.) The lower Court's order is one settling a proclamation of sale. The first objection taken to it is that the right, title and interest of the sixth defendant, here the appellant, is not correctly described in the words "The right, title and interest in the property to be sold is that of sixth defendant, Avudaina yagam Pillai excluding that part, if any, of his right, title and interest derived by him from the deceased, fifth defendant Muthukaruppa Pillai."

(2.) The circumstances are that the fifth defendant died during the pendency of the suit, one brought on a mortgage. The plaintiff did not implead any legal representative for him within the statutory period. The decree passed referred to the death of the fifth defendant and the consequent abatement of the suit against him. But it was in terms against the whole mortgaged property. It is clear, however, that only the snare of the defendant against whom the decree was passed, that is of the sixth defendant, can be made liable since the decree can be executed only against him. In fact, the fifth defendant's widow and the sixth defendant are now litigating regarding the fifth defendant's Snare. The question between them being whether the fifth and sixth defendants, brothers, were undivided or whether the widow took the fifth defendant's share by inheritance. In these circumstances, there is no doubt that the sixth defendant's share alone can be sold under the decree and that has not been seriously disputed. We think then that the lower Court's description of the sixth defendant's snare including the words, which statedly limit what is to be sold to the sixth defendant's share in his own right and exclude any addition to it which may ultimately be found to have accrued by survivorship, was a clear and sufficient description. It is said that the sale should be postponed, because in the circumstances the property cannot be brought to sale to advantage; but the issue before us is not of any claim, for postponement of the sale, but of the terms in which the sale proclamation is to be made. Those terms seem to us to be perfectly fair and as accurate as they can be made on this point. The appeal fails. The other question raised by the appellant is whether the valuation inserted in the proclamation is correct. It is objected that no appeal lies against that portion of the lower Court's order with reference to Sivagami Achi V/s. Subrahmania Ayyar 27 M. 259 : 14 M.L.J. 57 (F.B.). Some attempt has been made to canvass the correctness of that decision. It was, however, given twenty years back, and we see no reason why we should dissent from it. As the Full Bench there pointed out, it will be open to any party aggrieved by the incorrect valuation in the proclamation, who suffers substantial loss on account of it, to have the sale set aside. That remedy being open, we do not entertain the suggestion, which has also been made by Mr. Rajah Aiyar on behalf of the sixth defendant, that we should treat the appeal as a revision petition.

(3.) The appeal fails and is dismissed with costs.