RAMASESHA IYER Vs. CVRAMANUJACHARIAR

JUDGEMENT

(1.) Appellant 1 is the decree, holder in O.S. No. 59 of 1917 on the file of the Sub-Court, Trichinopoly. Appellant 2 is the auction-purchaser of the properties sold in execution of that decree. The respondent is the Official Receiver in I.P. No. 19 of 1918 on the file of the District Court of Salem. This appeal arises out of a petition under Order 21, Rule 90, Civil P.C., filed by the respondent to set aside the sale of the properties sold in execution of the decree in O.S. No. 59 of 1917 on account of various alleged irregularities. The circumstances are these. On 26 September 1917 appellant 1 obtained a decree for money in O.S. No. 59 of 1917 against defendant 1 therein, the father, and three other defendants, his sons.

(2.) In execution of the decree he attached on 23 November 1917 the properties belonging to the defendants. On 11 December 1919 defendant 1, the father, was adjulged insolvent in I. P. No. 19 of 1918 and his property became vested in the respondent, the Official Receiver, appointed by the Court. On 10 September 1920 the sons, (defendants 2, 3 and 4 in O.S. No. 59 of 1917) instituted a suit for partition, O.S. No. 31 of 1920, in the District Court of Salem against their father and the other defendants therein in which the Official Receiver, the respondent therein, was made defendant 4. Amongst other things the decree in the suit, dated 28 October 1925, stated that defendant 4 is entitled to sell the shares of the plaintiffs for debts of defendant 1 which are not proved to be illegal or immoral.

(3.) An appeal to the High Court against that decree was filed by the sons, defendants 2 to 4, the plaintiffs in the suit, on 18 November 1926. In the meanwhile, on 9 November 1925, E.P. No. 22 of 1926 was presented by appellant 1, the decree-holder, and notice was ordered to defendants 1 to 4 on 12 March 1926. The Receiver in I. P. No. 19 of 1918, the respondent herein, was directed to be made a party to the execution proceedings on 12 December 1927 and this was accordingly done. Finally the decree-holder sought for the sale of only the share of defendants 2 to 4. After hearing the objections of the receiver the learned District Judge ordered on 23 March 1928 that the sale of the shares of defendants 2 to 4 should be proceeded with. Notice for the settlement of the proclamation of the intended sale required under Order 22, Rule 66, Civil P.C., was not given to defendant 1 or the Official Receiver; it was given only to defendants 2 to 4. On 23 August 1928 the three-fourths share of defendants 2 to 4 was sold for Rs. 815 subject to certain encumbrances, and this share was purchased by appellant 2. Thereupon the application out of which this appeal arises was presented by the respondent (Official Receiver) to set aside the sale. Order 21, Rule 90, Civil P.C., provides that, no sale shall be set aside on the ground of Irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.