S A PANCHAPAGESA AYYAR Vs. RRAJAMANI AYYAR

JUDGEMENT

(1.) In execution of a decree obtained on foot of a promissory note executed by the second defendant in favour of the first defendant who is the appellant in this second appeal he purchased the suit properties. The promissory note was for the interest due under the mortgage deed executed by the second defendant in favour of the first defendant in the year 1931. The plaintiffs, who are the two sons of the second defendant, have brought the present suit seven years after the purchase by the first defendant, for the redemption of their 2/3rd share in the mortgaged properties, alleging that the sale in execution of the small cause decree obtained on foot of the promissory note is not binding against their interests in the properties, because the provisions of Order XXXIV, Rule 14, Civil Procedure Code were violated They also claim an account from the first defendant of the mesne profits received by him from the date when he got into possession of the properties under the sale and want that the amount for which he may be found liable in this respect should be set off against the amount due by them under the mortgage.

(2.) The District Munsiff held that the sale was in contravention of Order XXXIV Rule 14, Civil Procedure Code, as the promissory note on which the small cause decree was obtained was for interest due under the mortgage and that the plaintiffs were not bound by such sale. He further held that the first defendant was liable to account for the mesne profits since the date of his obtaining possession of the properties under the Court auction sale. He found that under the sale in exe caution only the father's 1/3 share was sold. On appeal by the first defendant" the Subordinate Judge of Mayavaram concurred with the District Munsiff in the findings about the violation of Order XXXIV, Rule 14 Civil Procedure Code and the accountably. He however held that what the first defendant purchased was not merely the 1/3 share of the father but the entire hypotheca.

(3.) For the appellant, the point has now been taken for the first time in second appeal that the suit is barred under Art. 12(a) of the Limitation Act as it has been instituted more than one year after the execution sale in Small Cause Suit No. 411 of 1935. This contention naturally raises the question whether the sale is one that requires to be set aside by the present plaintiffs. Whatever the previous view was as regards sales held in contravention of the prohibition enunciated in Order XXXIV, Rule 14, Civil Procedure Code, (old Section 99, T. P. Act) it is now settled law that such a sale is not void but only voidable and is good until it is set aside. It is really unnecessary to cite authorities in support of this position. If the sale is not a nullity, it requires to be set aside by persons who would otherwise be affected by the sale. It is not alleged that the mortgage created by the father was not binding on the sons; for such a debt due by the father, the interest of the sons also in the joint family property can be brought to sale. In a decree obtained against the father alone, the sons interest can be proceeded against. As stated already, the finding now is that the entire hypotheca was sold and not merely the father's share of the same. The violation of the provision in Order XXXIV Rule 14, Civil Procedure Code confers on the person affected only a right to have the sale set aside either by way of application or by way of suit, if a suit is permissible. But the application or the suit should be filed within the time provided by the law.