Manthiri Goundan vs Arunachalam Goundan and Another

Pandrang Row, J.—These appeals are connected. One is from an order dismissing the application of the appellant to restore to file the

petition to set aside a sale presented by him which had been dismissed for default; and the other is an appeal from the order dismissing the petition

to set aside the sale. The appellant who was the first defendant in O.S. No. 18 of 1934 had been adjudicated an insolvent and the application, was

made by him to set aside the sale on various grounds. That application was dismissed for default on the 9th December, 1937. An application to

restore the petition to file was made on the next day and that also was dismissed. As a result we have two appeals from the two orders which were

passed against the appellant. So far as the application made on the 10th December, 1937, to restore the petition to file is concerned it is not

seriously argued that such a petition was competent. The learned Subordinate Judge relied on the Full Bench decision in Arunachalam, minor, by

mother and guardian Periammai Vs. P.K.A.C.T. Veerappa Chettiar through his authorised agent S. Ramaswami Aiyar, and his finding to the effect

that the petition to restore the application to set aside the sale is not maintainable is obviously right. It follows from this that C.M.A. No. 304 of

1938 has no substance and must be dismissed. It is accordingly dismissed with costs.

The other appeal which is from the order dismissing the application to set aside the sale is pressed mainly on the ground that the finding of the

Court below that such an application made by the appellant is not competent because he had been adjudicated as an insolvent is wrong, and

further on the ground that on the merits it had been held that the appellant was really disabled by illness from attending Court when his application

came on for hearing and therefore the application for adjournment that was made to the Court below on this ground of illness ought to have been

allowed instead of being rejected. The first point, namely, the appellant''s right to apply to have the sale set aside is governed by the provisions of

Order 21, Rule 90 of the CPC under which the application was made. That rule provides that any person whose interests are affected by the sale

may apply to set aside the sale. The question therefore for decision is whether the appellant is not a person whose interests are affected by the sale

of the properties in question. Those properties were undoubtedly his properties which had been mortgaged and which had been sold in execution

of the mortgage decree. His adjudication as an insolvent and the vesting of these properties and all his other properties in the Official Receiver no

doubt deprived him of all interest in the property in praesenti. But does this mean that he ceased to be a person whose interests are affected by the

sale of the properties? The point is realty concluded in our opinion by the Full Bench decision in Subbaraya Goundan and Another Vs. V.V.R.

Virappa Chettiar Bank and its partners being Valliappa Chettiar and Others, . That was also a case of an insolvent and it was held that the

insolvency of the judgment-debtor did not per se render it incompetent for him to continue proceedings initiated by him under Order 21, Rule 90

and that he had also a right to prefer an appeal from an order dismissing such an application. There is an earlier case reported at page 359 of the

same volume of the Madras Law Journal decided by a single Judge, namely, A. Swaminatha Odayar Vs. Kalyanarama Aiyangar and Another, .

We have also been referred to the latest Full Bench decision in Ayyappa Naicker Vs. Kasiperumal Nayakar and Others, , in which it is pointed

out by the learned Chief Justice that the narrower meaning given to the phrase ""whose interests are affected by the sale"" in certain decisions is not

the correct meaning to be given to those words but that the words should be taken to mean any person whose pecuniary interests are immediately

and directly affected and that the decision to Kathiresan Chettiar Vs. Ramasami Chettiar and Others, , which interpreted the words to mean having

an interest in the property sold was wrong, and that decision was overruled expressly by the Full Bench.

In these circumstances it is obvious that the learned Subordinate Judge was not right in coming to the contrary conclusion relying on the cases

reported in S. Hari Rao Vs. The Official Assignee, High Court, Madras and Others, and Venkataramanayya v. Bangarayya (1934) 67 M.L.J.

942, which were hot concerned with the words with which we are now concerned, namely, the words found in Order 21, Rule 90, but with the

word ""aggrieved"" found in the Insolvency Acts. It seems to us that the words ""whose interests are affected by the sale"" must be construed in their

ordinary sense, and it is too much to say that merely because a person is adjudicated insolvent his interests are not adversely affected by the sale of

property that belonged to him before adjudication. For instance, if the insolvent''s property is really worth a lakh of rupees and is sold fraudulently

for Rs. 10,000 his interests are clearly affected by such a sale. There is no reason why these words should be interpreted in a narrow sense; on the

other hand, as observed already, the point is concluded by authority which is binding on us and we would follow it even if it was not so binding

because we take the same view. We find therefore that the lower Court''s finding on the right of the appellant to present the application to set aside

the sale is wrong and that he is entitled to present the application and to ask the Court to adjudicate upon it.

The only other question that remains is whether the petitioner had a reasonable opportunity of being heard when his application came on for

hearing. This would turn on the question of the propriety of the order of the Court below refusing to grant an adjournment which was applied for

on the 9th December, 1937. It is not now seriously disputed that the appellant was really too ill to be present in Court on that day as he had

undergone an operation for fistula. There is the evidence of the doctor who attended on him and there is really no room for doubt on the point; and

it may therefore be taken as established that the appellant was really disable by his illness from being present in Court when his application to set

aside the sale came on for hearing. In these circumstances the Court below ought to have granted the adjournment that was applied for because

the appellant was entitled to have a reasonable opportunity of being present in Court when his application was being heard on its merits. It is said

that what the appellant wanted was merely to have his evidence taken on commission and this he could have done in spite of his illness which did

not prevent his giving evidence in his own house. This loses sight of the fact that the appellant was not entitled as a matter of course to have a

commission taken out because the provisions relating to the issue of a commission do not apply to execution proceedings. Even otherwise, though

there is this reference to examination of the appellant on commission for the purpose of obtaining his evidence, it does not mean that the appellant

was not also anxious to exercise his right and privilege of being present himself in Court when his case was being taken up. Ordinarily a party is

entitled to be given a reasonable opportunity for being physically present himself when his case is being heard, and if his physical presence is made

impossible by reason of illness, justice requires that he should be given an adjournment for the purpose of enabling him to be present. In the present

case the Court below was made aware of the illness which prevented the appellant from being present in Court and an application for adjournment

had been made on this ground. In the circumstances we are of opinion that the lower Court erred in refusing to grant an adjournment and it follows

that the appellant should be given a fresh opportunity of establishing his case. This appeal"" is therefore allowed and the order of the Court below

dismissing the application to set aside the sale is set aside and the application is remanded to the Court below for fresh disposal on the merits

according to law. The costs of this appeal will abide the event and should be provided for in the revised order to be passed by the Court below.