RUKMANI AMMAL Vs. SUBRAMANIA SASTRIGAL

JUDGEMENT

(1.) This appeal is from an order of the learned Subordinate Judge of Trichinopoly. in E.A. No. 8 of 1935 dismissing the appellant's application, under Order 21, Rule 90 and Section 47 of the Civil P. C. to set aside a sale held in execution of the decree in O.S. No. 6 of 1927. The final decree in the suit was passed on 23 February, 1933 and the sale was held on 28 November, 1934. Several irregularities were alleged on behalf of the judgment- debtor. The learned Subordinate Judge held that no irregularities had been made out and also held that the lands had been sold for reasonable prices and that therefore no substantial loss had been caused. He therefore dismissed the petition.

(2.) In appeal Mr. Sitarama Rao for the appellant has pressed before us strongly the contention that the sale was illegal. The sale was fixed for 21 November, 1934. On the 21st of November, 1934, the judgment-debtor put in an application under Order 41, Rule 6, Sub- rule (2) praying that the sale might be stayed for two months on the ground that appeals were pending against the final decree and from an order of the Court on the application to set aside the preliminary decree in the suit The learned Subordinate Judge dismissed this petition on 28 November, 1934, and the sale was held on the same day. Mr. Sitarama Rao referring to the wording of Order 41, Rule 6, Sub-rule (2) contends that the Court has no option but to grant stay of sale on such terms as to giving security or otherwise as the Court thinks fit. We think that this contention is well founded. Mr. Krishnaswami Aiyar for the respondent has referred us to a decision reported in Babu Harnarain Sahi V/s. Sadhu Govind Rai . In that case Mr. justice Kendall expressed the opinion that Sub-rule 2 of Rule 6 does not impose on the Court which ordered the sale an obligation to stay the same merely because the property which is to be sold is immovable property. With all respect to the learned Judge we are unable to agree. Sub-rule 2 of Rule 6 is quite clear that when an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale, shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. We can see no justification for supposing that this rule means anything else than what it says. Mr. Krishnaswami Aiyar points out the danger that the judgment-debtor will be in a position to paralyse the executing Court, that he will be able to lie by until the last moment, then come up just when the sale is going to take place and get it stopped. We think there is sufficient answer to this in the provision that the Court may impose such terms as to giving security or otherwise as it thinks fit. If the Court thinks that the application has been designedly delayed, the Court can deal with it by prescribing conditions. If the judgment- debtor appears only on the morning to which the sale is posted, the Court has a discretion to say for example, that the sale will be stayed if the judgment-debtor produced the amount for which the sale is going to be held within half an hour or one hour. There is no limit to the discretion of the Court in imposing terms and that the Court is not without power to deal with a vexatious judgment-debtor in this way if the Court is obliged to stay a sale when such an application is made is quite clear from the terms of Order 41, Rule 6, Sub-rule (2). The learned Judge was therefore wrong when on 28 November, 1934, he thought he had discretion to stay or refuse to stay the sale. When the Code says the executing Court shall not sell in certain circumstances and the Court nevertheless proceeds to sell, the Court has committed in our opinion, what is more than an irregularity. It amounts clearly to an illegality. The learned Subordinate Judge ought to have imposed whatever terms he thought He and if those terms were not complied with he could then have directed the sale to proceed. On this ground alone we think that this appeal must succeed. Moreover, we are of opinion that the learned Subordinate Judge acted unreasonably in declining any postponement of the sale. It was shown that the judgment-debtor had been appealing against earlier orders passed by the executing Court and had been applying to this Court to stay the sale and that her last application for stay had been dismissed on 20 November, 1934. In those circumstances it appears to us that the learned Subordinate Judge ought to have realised that there was no chance of selling this property to the best advantage since there must have been considerable uncertainty as to whether the sale would-or would not be held at all. It would have been quite easy for the learned Subordinate Judge to prescribe conditions which would have been satisfactory to the decree-holder. It was shown that after the decree was passed the decree- holder realised Rs. 14,000 towards the amount of the decree by consenting to sales by the judgment-debtor to third parties. The learned Subordinate Judge might, for example, have prescribed that the judgment-debtor should pay, say, Rs. 20,000, within a month and there seems to be no reason to believe that the judgment-debtor would not have been able to comply with some such condition as that. The learned Subordinate Judge was not, we think, justified in holding that the application to stay the sale was devoid of bona fides and was designed merely to cause delay.

(3.) Another irregularity which undoubtedly occurred in the proclamation of the sale was that the proclamation for the sale of lands in Athikudi was affixed to Survey No. 131/1, which was not an item of land proposed to be sold. In the circumstances of this case we do not consider that it was a material irregularity since there was another sub-division of the same survey number that was intended to be sold and we do not think that any intending bidder could have been misled by the mere affixing of the proclamation to a pole planted in Survey No. 131/1.