Nagappa Chetty vs Muthuraman Chetty and Others

We have heard arguments in this case at considerable length both as to the age of the appellant and also on the law applicable to the case, as it

was presented to the lower Court, on the footing that the execution proceedings and the sale went through without his being impleaded as a major,

although be had become a major, prior to the date on which the sale was held. We, however, need not deal at length with those arguments,

because two other considerations, to which apparently the lower Court attached very little weight, are in our opinion decisive.

The argument that the appellant ought to have had notice and that the failure to give him notice entitles him to have the sale set aside can only

hold good, if he is entitled to notice under some provision of law. The provision relied on is Order 21, Rule 22 of the Code of Civil Procedure. The

argument for the appellant proceeded on the footing that either because more than one year had elapsed between the various applications for

execution or because his attainment of majority brought him within the provision regarding the making of the application against a legal

representative of the judgment-debtor, he was entitled to notice. But in fact, as reference to the B diary shows that Execution Petition No. 97 of

1919 on which the sale was held, was presented within one year of the previous application, E.P. No. 1142 of 1918, and that was within one year

of the decree. The contention that the application was or could be regarded as having been made against the legal representative of the judgment

debtor after the 2nd defendant attained his majority is clearly unsustainable the second defendant was the judgment-debtor and there was no

question of representation in connection with his being entitled to come before the Court, not through a guardian but in his own person. Certainly, a

major who is entitled to appear to the exclusion of the guardian appointed during his minority is not within the definition of ""legal representative"" u/s

2 of the Civil Procedure Code. On this ground alone the appeal might be dismissed.

There is, however, another ground for the same conclusion. It is found by the lower Court that the appellant became aware of the decree under

execution and the execution proceedings, certainly in February or March 1920. That is not disputed and it could not be, for on 14th April, 1920 he

filed a suit for a declaration that the decree was not binding on him. Along with the suit he filed a petition for stay of the sale, that petition being

dismissed on the date on which the sale was held, 20th April, 1920. All this was done in the Court in which execution was proceeding. It is clear

that the petitioner was perfectly aware of the proceedings. Yet he did not think fit to appear in them or to ask the Court to deal with the objections

to them. The case is then covered by Bamachari v. Duraiswami Pillai (1898) 21 Mad. 167, Tangutun Jaganadham v. Seshagiri Rao (1916) 20

M.L.T. 479, Krishnasivami Aiyangar v. Seerilcutti Ganapathi Aiyar AIR 1921 Mad. 523 and Rada Krishnaswami Naidu v. Annamalai Chettiar

AIR 1922 Mad. 301. The appeal fails and is dismissed with costs.