KODANDARAMA REDDIAR Vs. PPARTHASARATHI AIYANGAR

JUDGEMENT

(1.) This is an appeal against an order of the learned Subordinate Judge of Chingleput refusing to set aside a sale under Order 21, Rule 90 of the Civil Procedure Code. The appellant was the second judgment-debtor, the son of the first judgment-debtor. Notice of the execution petition was taken out to him as a minor represented by his father the first judgment-debtor as his guardian. At that time, it is now conceded, he was actually a major but that fact was not known to the Court nor according to its finding, to the decree-holder. The contention of the appellant be fore the learned Subordinate judge and again before us was that inasmuch as no notice was issued to him in his capacity as a major, the sale was altogether null and void. In support of this contention, the learned Advocate for the appellant has relied upon two rulings of this High Court reported in Tanguturi Jagannadham V/s. Seshagiri Rao (1916) 20 M.L.T. 479 and Rajagopala Aiyar v. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. 47 Mad. 288 (F.B.). The first case is one in which there was only a single judgment-debtor. Even there all that was decided was that the judgment-debtor could take as his cause of action for suit to set aside a sale, the fact that no notice had been served upon him as a major. The learned Judges who decided the case went on to point out that there would be a good defence open in such a suit if the defendant could show that the plaintiff, although he had not received formal notice as major, was actually aware of the existence of the execution proceedings and could have intervened to prevent the sale and deliberately refused to do so.

(2.) It is obvious that if such a defence were open it is impossible to maintain in all it's rigour the proposition of law that the issue of notice to a major as if he were a minor is necessarily fatal to further proceedings in execution. In the second case in Rajagopala Aiyar V/s. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. 47 Mad. 288 (F.B.), there were two separate defendants, the first and the third. It is clearly stated that no notice of any kind was issued to the third defendant. It was therefore held that the Court had refused to carry out the plain duty imposed upon it by Order 21, Rule 22 and had no jurisdiction to conduct the sale subsequently. To us there seems to be very clear, distinction between a case in which no notice is issued at all to a particular defendant and a case in which notice is issued to him as if he were still a minor, the reason for issuing such notice being that both the decree-holder and the Court were unaware of the true age of the defendant. We think that to issue such a notice is a sufficient compliance with the requirements of Order 21, Rule 22, Civil Procedure Code and that no question of jurisdiction arises though if the facts subsequently show that the defendant was not a minor but a major and the issuing of the notice might amount to an irregularity.

(3.) The question then arises whether the occurrence of such an irregularity has resulted in the present case in substantial loss to the appellant. The learned Subordinate Judge has held that there is no substantial loss at all. This part of the case has not been very seriously pressed before us. It is true that witnesses have appeared who estimate the value of the property at many times the price which it fetched, but there are no title deeds or other documents relating to the property itself; nor was any person called who was prepared there and then to buy the property at the value which he put upon it. Even however if it be asserted that the price fetched was a low one, the appellant has still failed to prove that the omission to issue special notice to himself as major has brought about this result. Throughout his evidence there is no hint of any special measures which he would have undertaken had he received this formal notice. The learned Subordinate Judge believes, and we see no reason to differ from him, that" the appellant was all along aware of the execution proceedings and that he has been deliberately put forward by his father to file this petition.