VISWANATHA PILLAI Vs. AMVMUTUGAPPAN CHETTIAR

JUDGEMENT

(1.) This is an appeal from the order el the Subordinate Judge of Tutioorin dated 3lst March 1934 dismissing an appeal from the order of the District Munsif of Koilpatti dated 31st December 1932 which dismissed an application by the judgment-debtors in 8. O.S. No. 686 of 1931, on the file of the Sub-Court of Madura, to set aside a sale of certain properties held in execution of that decree. A preliminary objection has been raised to the competency of this appeal, the contention being that no second appeal lies from an appellate order on an application to set aside a sale, inasmuch as only one appeal is allowed from an order on an application to set aside a sale. It has however been held in several cases that a second appeal does lie in a case of this kind where the judgment-debtor himself applies to set aside the sale, as in such a case the provisions of Section 47 apply. It is enough to refer to the cases reported in Neelu Neithiar V/s. Subranania Moothan 1920 Mad 481; Rajagopala Ayyar V/s. Ramanujachariar 1924 Mad 431 and Sorimuthu Pillai V/s. Muthukrishna Pillai 1933 Mad 598. I am of opinion 4hat a second appeal does lie and the preliminary objection is therefore unsustainable.

(2.) Going to the merits of the case, it is een from the order of the Subordinate -Judge under appeal that he was himself of opinion that the service by affixture of the notice of the sale proclamation to 4he judgment-debtors was not due service because there was no declaration that such kind of service was sufficient or due service. The provisions of Order 5, Rule 19, Civil P.C., are imperative, and when there is no declaration that the service is due service, the service cannot be held to have been effected at all, and the case is one in which there has been no service at all of the notice of sale proclamation, and the judgment-debtors had no opportunity to represent what they had to say to the Court, before the Court drew up the sale proclamation. In this particular case, the extreme expedition with which the decree-holder attempted to have the sale proclamation approved and the sale ordered shows : that the judgment-debtors could not have had really any notice. The application was presented on 28th March; attachment was ordered on 29th; on 12 April the sale papers were called for to for filed by the 15th; and on the 15 further time was given till 18 April. On 16 April an application was made to advance the hearing and the hearing was advanced to that very date, and notice of sale proclamation was ordered for 21 April allowing only a margin of five days for the service of that notice. The sale proclamation was actually approved on 22 April, and the upset price was fixed also on that date, namely Rs. 250 subject to the encumbrances and the sale was ordered to be held on 10 June. The properties were sold on that date for Rs. 251,

(3.) The learned Subordinate Judge finds !that the real value of the property sold subject to encumbrances was about Rs. 2,000. It is therefore seen that there was very great disparity between the actual value and the upset price fixed by the Court. It would appear that the executing Court was under the mistaken impression that all the properties brought to sale were subject to the two mortgages in question. As a matter of fact, eight items of the property, namely, items 19 to 26. were not to the extent of one half of them subject to any of the two mortgages. If this fact had been known to the Court, it is almost certain that the unencumbered half o? the items would have been sold first for the purpose of satisfying the decree, and the rest of the properties would have been ordered to be sold only if the former failed to fetch the required amount. It is seen from the finding of the Subordinate Judge, hims9lf that the unencumbered half of these items would itself have fetched more than the decree amount. In these circumstances, I find it difficult to understand the further finding of the Subordinate Judge that there was no substantial injury to the judgment-debtors. From the finding of the Subordinate Judge himself it is seen that there was substantial injury, and this injury must be deemed to have been due to the non-service of the notice of the sale proclamation to the judgment-debtors. Even otherwise, apart from the non-service of the notice, the disparity between the upset price that was fixed by the Court and the real value of the property is so great that the properties must have been deemed to have been grossly undervalued and that gross undervaluation is itself a material irregularity in the conduct of the sale which must have caused substantial loss to the judgment-debtors. For these reasons, this appeal must succeed. The sale of the properties in question is therefore set aside and the appeal is allowed with costs in this Court and in the two Courts below.