Manasani Anasuryamma and Another vs Maddula Venkata girirao and Others

Chandra Reddy, J.—The Petitioners in the lower Court are the Appellants here. Their application u/s 47, CPC to set aside the sale held on 30-8-1948 was dismissed by the District Munsif of Repelled both on the ground that it was barred by limitation and also that no irregularity was committed in the conduct of sale. This was confirmed on appeal by the Subordinate Judge. The second appeal is brought by the aggrieved Petitioners against this order of the lower appellate Court.

In order to appreciate the contentions arising in this appeal, it is necessary to set out the material facts. Respondent 1 filed a suit on the foot of a promissory note against one Mir Mahommed Saheb and attached the properties in dispute before judgment. He obtained a decree on 13-11-1934 for Rs. 1331-11-6 with interest at the contract rate from the date of suit and costs.

Between the date of the decree and 17-7-1935 payments amounting to Rs. 1500/- were made. The judgment-debtor sold one of the properties attached, namely, item 3 under Ex. A-3 dated 27-8-1936 to one Veerayya for Rs. 1800/- in discharge of a debt due to the latter. The vendee conveyed this property under two documents to his two daughters the Appellants herein on 4-1-1939.

To realise the unpaid balance, the decree holder who is Respondent 1 herein filed a number of unsuccessful execution applications. The last one which resulted in the sale of the properties was E. P. No. 20 of 1947. This was for a sum of Bs. 183-14-4. It may be stated here that Mir Mahommed the original judgment debtor died leaving behind him his widow and three sons. They were brought on record as his legal representatives in the execution petition and notice was ordered to them. But they did not choose to appear and contest the appeal.

In the execution proceedings the property in question was brought to sale and was purchased by the decree-holder himself for a sum of Rs. 1310/- Deducting the amount due to him the decree holder auction purchaser deposited the balance of the purchase-money which is said to nave been withdrawn by Respondents 2 to 5 the legal representatives of the original judgment debtor. The sale was confirmed on 4-10-1948 and possession taken by the auction purchaser on 29-11-1948.

A few days thereafter, i.e., on 4-12-1948 the petition giving rise to this appeal was filed. This was resisted by the decree holder auction purchaser on various grounds namely that it is barred by limitation and that there was no irregularity in the conduct of the sale of the properties so as to enable the Petitioners to have the sale set aside. The Court below found on both the issues as against the Appellants.

It is argued by Mr. Kotayya that the lower appellate Court ought to have given relief to his clients having found that the decree holder was guilty of fraud, According to him, though the judgment debtor was an agriculturist within the meaning of Madras Act 4 of 1938 and notwithstanding that this fact was mentioned in the execution petition filed in 1940 the decree-holder filed an affidavit to the effect that the judgment debtor was not an agriculturist and thereby prevented the Court from giving relief to the judgment debtors.

The learned Counsel continues that the fraudulent conduct of the decree-holder has vitiated the entire sale proceedings ant rendered the sale void and therefore it is unnecessary to have the sale set aside.

If really the sale is void as contended for by Mr. Kotayya the application was not barred by limitation as it was filed on 4-12-1948. Article 166, Limitation Act which prescribes a period of 30 days for setting aside a sale applies only to voidable sales and does not govern sales which are absolutely void such as for failure to issue notice under Order 21, Rule 22, CPC The latter category of cases is governed by Article 181, Limitation Act such sales do not require to be set aside and could be ignored or a declaration that they are void could be prayed for.

But the question for consideration is whether the sale in question could be regarded as a void one so as to fall within the scope of Article 181. As I have already stated, apart from the bar of limitation the Courts below have negatived the contention of the Appellants that the sales were affected by irregularities enumerated in the petition.

It is true that the learned Subordinate Judge has remarked that the decree holder was guilty of fraud in stating in an affidavit that the judgment debtor was not an agriculturist entitled to the benefits of Act 4 of 1938 and that by this statement he misled the Court into proceeding on the basis of the judgment debtor not being an agriculturist and allowing the execution to proceed for the balance without scaling down the debt.

In my opinion, there is absolutely no warrant for this conclusion of the learned Judge. The recital complained of is that the judgment debtor is not a person entitled to the benefits of the Act. According to the learned Judge and Mr. Kotayya, the decree-holder was under a duty to state the facts correctly and by making the allegation quoted above he was guilty of dereliction of duty to Court.

It is also argued by Mr. Kotayya that a failure on the part of the decree holder to bring it to the notice of the Court that the judgment-debtor was one who could claim the benefits of the Act has rendered the whole execution proceedings invalid. I find it very difficult to accede to this proposition. For one thing, all that was stated in the affidavit was that the judgment-debtor was not one who could claim the benefit of the Act.

Assuming that that statement is incorrect could a fraudulent conduct be attributed to him He had set out only the legal position as understood by him To say that one of the parties to a litigation is under an obligation to plead everything in favour of the other side and place material that would help the other side to get relief against him is too much nor. could it be said that his failure to do so would render any order or decree that is obtained by him in fructuous. I do not think there is any such obligation or duty cast on any of the parties to a litigation especially when notice was issued to the other side and they choose to remain ex parte.

That apart, in this case, in the execution petition which ultimately ended in the sale of the properties, the judgment-debtors were described as jeroyatidars which I am told means cultivators. It is in this application that the calculation of the unpaid balance was made, interest having been calculated at 6 per cent, per annum and it is that that has led to the sale.

Certainly the Court is expected to be guided by this application and not by a statement made in an affidavit filed in Anr. execution petition six years before. There is therefore no question of the executing Court having been then misled. It must also be mentioned that the learned Judge thought that this did not in any way affect the sale. In this situation, there is no substance in the contention that the decree holder was guilty of fraud leading to the sale becoming void.

It follows that the Petitioners in the lower Court could only attack the sale on any of the grounds available to them under Order 21, Rule 90, CPC Such a petition comes within the scope of Article 166 and so has to be filed within 30 days. Since this petition was beyond 30 days it is barred by limitation.

It was next urged by Mr. Kotayya that the sale was void for Anr. reason, namely that notice was not issued to his clients for the last execution petition which fructified into sale. Though this point was not raised in the Courts below, I allow Mr. Kotayya to argue it as it is a pure question of law. It is his submission that Order 21, Rule 22, CPC requires notice to be issued to the judgment debtor or his legal representatives if the execution is taken out more than two years after the date of the decree.

Admittedly the last execution petition was after two years. But the point for decision is whether the Appellants are the legal representatives of the judgment debtors so as to fall under Order 21, Rule 22 as argued by him. It is maintained by Mr. Kotayya that the Appellants being vendees from the judgment debtors and therefore claiming through them are his legal representatives. For this reason, want of notice to his clients has invalidated the sale.

The answer to this contention is found In Section 64, Code of civil Procedure.

Where an attachment has been made, any private transfer or delivery of the property attached or any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment shall be void as against all claims enforceable under the attachment.

It is manifest from this provision of law that any alienation of attached property docs not bind the decree holder He can proceed against the property in execution of the decree ignoring any transfers made of this property The vendee does not acquire any right in the property so as to defeat the claims enforceable under the attachment. That being the situation the decree-holder bringing the attached properties to sale is not bound to take note of the subsequent sale and issue notice to the alienee.

I am reinforced in this view of mine by a judgment of the Madras High Court in - Sunkarapalli Ranganayakulu and Another Vs. Gona Gopayamma and Another, , where it was ruled that the decree holder can proceed on the assumption that the judgment debtor was the owner of the property ignoring the transfer of the attached property and the attachment could be worked out by proceedings in execution against the transferor. It follows that omission to issue notice to the transferees is not fatal to the sale.

In the result, the order under appeal is confirmed and the appeal is dismissed. I am thankful to Sri Ch. Sankara Sastry for assisting me as ''Amius Curiae'' in the matter on behalf of the Respondents who are unrepresented.