MANICKAVASAKA THEVAR Vs. CHIDAMBARAM PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit filed by the respondent in the Court of the District Munsif of Tenkasi for a decree setting aside a sale held under the Madras Estates Land Act, 1908, and for a declaration of his title. The land in suit formed part of a mitta of which the second appellant is the mittadar. The ryot was one Namasivaya Moopanar who became insolvent in 1926. His insolvency, however, did not result in the disturbance of his possession. The Official Receiver took no steps to take over the land, nor even to notify the landlord of the ryot's insolvency. Before the insolvency the ryot had mortgaged the holding to the respondent, who brought a suit to enforce his mortgage and impleaded the Official Receiver as a defendant. A mortgage decree was obtained and on the 18 October, 1929, the property was sold in execution, the respondent being the auction-purchaser. He took possession of the property from the ryot on the 19 December, 1929. In 1932 the second appellant instituted proceedings for the recovery of the rent then due. The property was still registered in the name of Namasivaya Moopanar, who was made the respondent in the proceedings. The property was brought to sale on the 15 October, 1932, and was purchased by the first appellant.

(2.) It will be convenient to interrupt the narrative here in order to refer to the relevant provisions of the Madras Estates Land Act, 1908. Section 112 provides that when the landholder to whom an arrear is due intends to avail himself of the powers given by Section 111 to sell the property, he shall serve on the defaulter through the Collector a written notice, stating the amount due for arrears, interest and costs, if any, the period for which and the holding in respect of which it is due, and informing him that if he does not pay the amount or file a suit before the Collector contesting the right of sale within 30 days from the date of service of the notice, the holding or any part thereof specified in the notice will be sold. Section 113 requires that intimation of the date of service shall forthwith be given to the landholder by post. Section 114 says that if the amount of the arrear is not paid and if no suit contesting the right of sale is instituted before the Collector within 30 days from the date of service of the notice, or if such suit has been decided against the defaulter, the landholder may apply to the Collector for sale. Section 115 provides that if no suit has been instituted the application for sale shall be made within 45 days of the posting by the Collector of intimation of service under Section 113. No suit was filed by the defaulter and it is common ground that the provisions of Secs.112, 113, 114 and 115 so far as they were applicable were followed. Section 116 says that immediately on receipt of the application for sale the Collector shall appoint an officer to conduct the sale. Section 117 requires the selling officer by order (i) to fix a date for the sale, (ii) to cause the sale to be proclaimed by beat of drum in the village in which the holding is situated, and (iii) to post a copy of his order in some conspicuous place in the village. This section clearly contemplates the selling officer settling the terms of the proclamation.

(3.) In this case the Collector fixed the date for the sale, settled the terms of the sale proclamation and himself caused it to be proclaimed. He signed the sale proclamation as the selling officer, which he had no power to do as he was not the selling officer. The sale proclamation was settled on the 8 September, 1932, and was proclaimed by a process- server acting under his orders on the 14 September, 1932. By an order dated the 11th September, 1932, the Collector appointed a selling officer, but all that the selling officer did was to preside at the auction. The respondent's case is that by reason of the non-compliance with the provisions of Section 117 the sale was unlawful. The District Munsif accepted this contention and decreed the suit. The decision was upheld on appeal by the Subordinate Judge. While admitting that there were the irregularities complained of by the respondent the appellants contend that the provisions of Section 117 of the Act are merely directory and that in as much as the disregard of them has resulted in no loss being suffered, the Court is not entitled to set aside the sale.