PERIYANNAN KALADI Vs. RAMASWAMI PALLAVARAYAN

JUDGEMENT

(1.) THE appeal has to fail as the decision of the lower Courts that the petition is barred by limitation is correct. THE appeal arises out of a petition filed partly under Order 21, Rule 90 and partly under Section 47 of the Civil P. C. for setting aside a sale held in execution of a decree. THE only point on which the appeal has been argued is that the sale was invalid because notice had not been issued to the judgment-debtor before a fresh proclamation was settled. THE properties were sold in execution of a decree and they were then described in two lots. THE sale had to be set aside because the decree-holder did not deposit the purchase money. Before a fresh proclamation had to be ordered, a direction was given that the properties in one 6i the lots should be sold separately and individually and not as in one lot. Consequently, a fresh sale proclamation had to be settled. No notice was sent to the judgment-debtor before this fresh proclamation was settled. It is this failure that is said to constitute a defect which would entitle the appellant to come under Section 47 of the Code of Civil Procedure. Consequently the second appeal lies. THE next question is whether even though the petition is filed under Section 47, the Art. of the Limitation Act that would apply to this petition is Art. 166. THE application was not admittedly filed within thirty days from the date of sale. It is however urged by the learned Counsel for the appellant that it is, not necessary to set aside the sale as the sale was invalid, the Court having had no jurisdiction to direct the sale of the properties. Notice had not been issued to the judgment-debtor before the fresh sale proclamation was settled. This matter was considered by a Bench of this Court in Neelu, Neithiar V/s. Subramania Moothan (1919) 11 L.W. 59. This is what is stated there: Lastly, it is urged that the sale is unsustainable on its merits, because owing to the absence of notice to petitioners of the proceedings for framing proclamation it was held without jurisdiction; and is a nullity. Shyam Mandal V/s. Satinath Banerji (1916) I.L.R. 44 Cal. 954 is referreo to in this connection. But there, the notice absence of which was relied on, was one required by Order 21, Rule 22 and its issue was a condition precedent to the validity of any execution proceedings. THE notice referree to in Order 21, Rule 66 is an incident in the course of execution proceedings, the validity of which is independent of it. Taking this view, we disallow this contention also.

(2.) IT is urged however for the appellant that this decision was prior to the decision of the Full Bench in Rajagopala Aiyar V/s. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. 47 Mad. 288 (F.B.). The decision of the Full Bench is the same as the decision of the Calcutta High Court in Shyam Mandal V/s. Satinath Banerji (1916) I.L.R. 44 Cal. 954 and consequently it cannot be said that this decision has been overruled by the decision of the Full Bench referred to above. The appeal accordingly fails and is dismissed with costs.