PASUMARTI PAYIDANNA Vs. GANTI LAKSHMINARASAMMA

JUDGEMENT

(1.) This is a Second Appeal from the decree of the Lower Courts declaring that the sale in execution of the decree in O.S. No. 559 of 1903 on the file of the District Munsif of Vizagapatam was not binding on the plaintiff. The present plaint was presented as a petition in that suit, but was registered as a plaint in a separate suit under the new provision in Section 47, Civil Procedure Code.

(2.) The facts may be briefly stated. The present 1st defendant had obtained decrees against plaintiff s husband in two suits 555 and 559 of 1903, and after his death his two widows, the plaintiff and the 2nd defendant, were brought on as his legal representatives by the Court of the District Munsif of Rajam to which the decrees had been transferred for execution. One of the grounds taken by the plaintiff is that the Court to which the decrees had been transferred for execution was not the proper Court to bring on legal representatives of a deceased party, as decided by the Full Bench in Swaminatha Ayyar v. Vaidyanatha Sastri (1905) I.L.R. 28 M. 466 and that the order was a nullity. It is, however, unnecessary to consider this point, as the sale has been held not to be binding on another ground. The main objection to the sale is that, as found by the Lower Courts, at the time when the plaintiff and the 2nd defendant, the co- widow were brought on the record and at the date of the sale on 19-10-06 the plaintiff was a minor only attaining her majority in July 1907, while the other widow, the 2nd defendant had ceased to have any interest in the estate of her deceased husband. The plaintiff was admittedly impleaded as a major though, according to the findings, the 1st defendant decree- holder and the 3rd defendant, the auction purchaser both knew she was a minor. The attached properties which were subject to mortgages were first put up for sale by the 1st defendant in execution of his decree in O.S. No. 555 of 1903 on the 15th October 1906. The properties were put up at Rs. 600 and the sale list Exhibit H shows that there were no bidders on the 15th, 16th, and 17th and that on the 18th the present 3rd defendant bid 601. This sale was stopped at the instance, it is said, of the 3rd defendant because certain other decree-holders had applied for rateable distribution in the suit, a matter which was no business of his; and on the following day, the 19th, the 1st defendant applied orally to the District Munsif in the other suit 5 59 of 1903, and, on the plea that there were no bidders, got the reserve price reduced to Rs. 200, without telling the District Munsif of the sale in O.S. No. 555 of 1903 and the bid of 601 by the 3rd defendant. The properties were then put up to sale in O.S. No. 559 of 1903 and knocked down to the 3rd defendant for Rs. 201.

(3.) The Subordinate Judge has found, in my opinion rightly, that this was a fraud upon the plaintiff. The properties should have been sold in execution of the decree in O.S. No. 555 of 1903 in which they were first put up for sale, then the 1st defendant, as decree-holder in O.S. No. 559 could if so minded have applied for rateable distribution of the sale proceeds; and the conduct of the 1st defendant and the 3rd defendant in proceeling with the sale in the second suit and getting the reserve price reduced by suppressing from the court what had happened at the first sale amounted to a fraud upon the plaintiff This fraud is not without some bearing on the main issue in the case, because, in view of what had happened in the absence of any proper representation of the judgment-debtor, it cannot be said that the plaintiff was not prejudiced by the omission to bring her properly on the record.