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Judgment
Subramania Iyer, J.—These two cases arise out of proceedings in execution of the decree in O.S. 846/1097 on the file of the Shertallai
Munsiff''s Court which was one obtained for dues to the ''jenmi Devaswom'' called ""Thanneermukom Chali Narayanapuram Devaswom"" owned
by a Nambudiri family Godararu Narayatiaru Namfooodiripad who obtained the decree and died in the year 1105. The succeeding karnavan
Kuthiraru Godararu Nambooripad was thereafter brought on record as the 2nd Plaintiff. On 2-1-1119 an execution petition was presented by the
said 2nd Plaintiff and his son Guptan Nambooripad stating that the son may also be ''brought on record as the holder of a power of attorney from
his father. The application was allowed and thereafter the father and son as Plaintiffs 2 and 3 figured on record. The decree was obtained against
the members of an Eazhave Marumakkathayam tarwad for recovery of the sum decreed and costs by sale of the holding as also from the other
properties of the tarwad. The properties directed to be sold were sold by court and purchased in the name of the 3rd Plaintiff aforesaid on behalf
of the Devaswom.
The 3rd Defendant filed two applications to set aside the sale, one under Order 21, Rule 87, Travancore CPC (corresponding to Order 21, Rule
90 of the Indian Code) and Anr. u/s 40 of the same Code (corresponding to Section 47 of the Indian Code). The grounds relied upon in the
petition under Order 21 were irregularities in publishing and conducting the sale and loss consequent. The ground relied upon in the petition u/s 40
was that an amount far in excess of that due was claimed as due in the execution petition and was realised at the sale. The learned Munsiff
dismissed both the application''s as in his view the applicant not having set up fraud or want of notice, was precluded, by the proviso to Order 21,
Rule 87 on account of his default of appearance at and objecting to the settlement of the draft proclamation, from relying upon any irregularity
connected therewith to sustain an application for setting aside the sale. The proviso runs as follows:
Provided (1) that no sale shall be set aside on the ground of such irregularity or fraud, unless, upon the facts proved, the court is satisfied that the
applicant has sustained substantial injury by reason of such irregularity or fraud:
(2) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not
attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by
him at the time in respect of the defect relied upon.
This is a provision which exists in the Travancore Code but not in the Indian Code. As regards the other application u/s 40, the Munsiff took the
view that the mere, fact that an amount in excess of what is due was claimed would not vitiate the sale.
Aggrieved by these adjudications, the applicant appealed to the District Judge of Alleppey by presenting Civil Miscellaneous Appeal 85/1121
and A.S. 257/1121. The learned Judge differed from the Munsiff in his view; and allowed both the appeals and set aside the sale finding that it was
vitiated by irregularities in its publication and conduct resulting in loss. He also found that the claim to recover an amount three times more than
what was due contravened the mandatory provisions;1 of Order 21, Rule 9, Travancore CPC which; provides for recovery only of the amount
due under the decree by execution.
The 3rd Plaintiff has approached this Court praying that the order of the learned Judge may be reversed and the sale confirmed. The Civil
Revision Petition is against the order in C.M.A. 85/21 and the Second Appeal is against the judgment in A.S. 257/21.
The only Respondent to the C.R.P. and the Second Appeal is the 3rd Defendant who presented the applications to set aside the sale and he is
unrepresented in this Court.
Mr. Narayana Pillai, learned Counsel tot the Appellant-Petitioner urges three points, in this Court. The first point is that the appeals, presented
by the Respondent before the District Judge were incompetent in that the sole Respondent thereto was the 2nd Plaintiff; the not having been the
3rd Plaintiff as a Respondent to those appeals, they were improper constituted and should have been dismissed that ground. The execution petition
date 2-1-1119 as a result of the prayer contained in which the 3rd Plaintiff came on record shows that he came on record because he was the
holder of a power of attorney from the 2nd Plaintiff and that even in that capacity he did not come in substitution of his father the 2nd Plaintiff but in
addition to his father as the 3rd Plaintiff.
The father who was the principal continued to be there on record and the emergence of the 3rd Plaintiff could only be for facility of conducting the
proceedings. The capacity of the principal to represent himself is not taken away from him or limited to any extent or in any manner by the bringing
in of the donee of a power of attorney from him on record. The non-impleading of the 3rd Plaintiff in the appeals was therefore an immaterial
circumstance and will not affect their competency. The point urged on behalf of the Plaintiff would have succeeded had there been facts to support
it; but there are none. That point recoils on him in this case.
As already stated the only Respondent in this Court is the 3rd Defendant who is only one among the various members of a ''Marumakkathayam''
tarwad who were all impleaded as Defendants in the case. An order obtained at the instance of the 3rd Defendant which enures to the benefit of
himself and all the other members of the family alike cannot be interfered with or set aside without all the persons who are benefited thereby being
on record and being heard. Those other members of the tarwad are not impleaded to the proceedings in this Court which are therefore not
properly constituted and this circumstance is a defect fatal to the consideration either of the C.R.P. or the Second Appeal because if accepting the
C.R.P. or the Second Appeal, an order or decree is passed in favour of the Petitioner-Appellant, it would lead to the simultaneous existence of
two contradictory conclusions about the same matter, one where the sale stands set aside so far as the 3rd Defendant is concerned and the other
where the ""sale stands confirmed so far as the other members of his tarwad are concerned, a contingency which is obnoxious to law. Neither the
C.R.P. nor the Second Appeal is maintainable for this sole reason.
Another argument urged by learned Counsel for the Appellant is that the 3rd Defendant was estopped by the proviso to Order 21, Rule 87,
Travancore Code of Civil Procedure, from relying upon any 1 irregularity in conducting the sale, he not having appeared at the time of settlement of
the draft proclamation. Written objections were filed to the applications presented by the 3rd Defendant, they were read before me. I searched in
vain to find a plea raised therein to the effect that on account of the default of the applicant to appear at the time of settlement of the draft
proclamation after notice, he is estopped from contesting the validity of the sale on account of any irregularity in the protarnation. There is no doubt
a general objection raised that the petition is not maintainable and that there is a legal obstacle to the petition. What that legal obstacle is has not
been mentioned. To found a plea of estoppel by conduct, there should be precise pleading setting up the facts constituting the estoppel.
There is the absence of such a plea in this case and in my judgment the foundation for raising that plea not having been laid in the 1953 pleadings,
the trial court which found in favour of that plea was in error and the learned Judge in appeal was right in his view that there was no estoppel
standing in the way of the 3rd Defendant getting the relief that he asked for. The learned Judge has found upon the evidence that the property
which was worth, according to the report submitted by the commissioner deputed by the court, Rs. 422/- has been sold for a grossly inadequate
price and that there were irregularities in the proclamation particularly in that the value of the property shown was ridiculously lower than its real
price. The learned Judge also found that whereas the amount due under the decree was only 552 fanams, the amount shown as due was about
thrice this figure which difference arose on account of calculating amounts contrary to the terms of the decree.
Learned Counsel for the Appellant argues that the mere fact of the decree-holder having sought to realise a sum in excess of what was due
would not constitute an irregularity. If it had been a case of a slight error of calculation in a few rupees it might have been a different matter but here
the calculation made is directly contradictory to the terms of the decree and can be characterised as deliberately so. Again the showing of a
ridiculously low value in the proclamation for the property which, on the face of the proclamation, is worth many times more than the price shown
would also be an irregularity as it would lead to an apprehension in the minds of intending purchasers that there may be something wrong with the
title to the property especially because there is no guarantee of title in court sales. Reference may, in this connection, be made to the observations
of the Judicial Committee of the Privy Council in - ''Saadatmand Khan v. Phul Kuar'' 20 All 412 at p. 418 (PC) (A) as regards the disproportion
between the ''jama'' of the properties and the total value shown therefor. Their Lordships say:
Another is, that the disproportion between the ''jama'' and the total value was calculated to excite suspicion of something wrong with the title, and
so to deter biddings.
It is therefore clear that there were irregularities in the proclamation and that the price the sale fetched was inadequate, that is to say, there was loss
Sustained.
Learned Counsel for the Appellant further contended that it has not been established that the loss at the sale was occasioned by the irregularity.
In a case where irregularities in proclaiming and conducting sale are established, and loss at the sale arises the causation of the one by the other
need not be established but can be presumed.
The result is that the orders passed by the learned Judge setting aside the sale must stand and the C.R.P. and the Second Appeal should both be
dismissed.
The execution petition dated 2-1-1119 on which the execution proceedings started terminating in the sale which now stands set aside is
pending and will be available to the decree-holder to be proceeded with for recovering whatever is really due, by processes legally available to
him. Though there appears to have been an order dismissing that petition when the sale was confirmed by the Munsiff, the order of confirmation of
the sale stand automatically vacated by the setting aside of the sale and the execution petition again becomes available to be proceeded with by the
decree-holder.