P.R.M.S. Chellappa Chettiar vs Manickam Pillai and Others

Happell, J.—The appellant had obtained a decree in O.S. No. 143 of 1936 in the District Munsiff''s Court of Trichinopoly and to execute

that decree he had filed E.P. No. 853 of 1943. In pursuance of that petition property had been attached and sale papers had been filed. Before,

however, the property was brought to sale respondents 3 and 4 who held a decree against the same judgment-debtor in O.S. No. 157 of 1938 on

the file of the District Munsiff''s Court, Erode had that decree transferred to the District Munsiff''s Court, Trichinopoly and in E.P. No. 118 of

1943 asked for sale of the same property as that attached by the present appellant subject to an encumbrance of Rs. 7,000 in their favour. The

appellant, in E.P. No. 118 of 194.3 filed by the respondents 3 and 4 filed E.A. No. 795 of 1943 in which he prayed for the sale of the property

free of encumbrances. The learned District Munsiff dismissed this application on the ground that the appellant should prove his contention that the

property was free of encumbrances in a properly instituted suit. The effect of this order was therefore that if the property was. to be brought to sale

in either the execution petition filed by the appellant or the execution petition filed by respondents 3 and 4 it would have to be sold subject to the

encumbrance of Rs. 7,000. Execution, however, proceeded in the appellant''s petition E.P. No. 853 of 1943 without reference to the proceedings

in E.P. No. 118 of 1943. When on the 16th November, 1943 the petition came up for settlement of the terms of proclamation although by that

date the District Munsiff had already held that the property should be sold subject to the encumbrance (his order on E.A. No. 795 of 1943 had

been passed on 27th October, 1943) the terms were settled without reference to any encumbrance on the property. Thereafter the property was

sold free of encumbrance and purchased by the appellant himself. Before, however, the sale was confirmed it came to the notice of the District

Munsiff that the sale had been held without regard to his order in E.A. No. 795 of 1943 and he, after ordering notice to respondents 3 and 4 and

the appellant, set aside the sale. His order was confirmed on appeal by the District Judge, Trichinopoly.

It is argued by learned counsel for the appellant that the cases cited by the lower Courts are distinguishable from the facts of the present case

and that, in any event, there was no duty cast on the appellant to bring it to the notice of the District Munsiff that the sale should be held subject to

the encumbrance of Rs. 7,000 for the reason that the order against him in E.A. No. 795 of 1943 was not made in his suit O.S. No. 143 of 1936

but in the execution petition No. 118 of 1943 filed by the third and fourth respondents in their suit O.S. No. 157 of 1938. There is some substance

in the contention that the cases relied on by the lower Courts, Mulraj v. Buramal I.L.R.(1931) Lah. 602 Govinda Padayachi Vs. Velu Murugayya

Chettiar and Another, and Janakbati Chaudhrain v. Rameshwar Singh I.L.R.(1921) Pat. 235 : 69 I.C. 872 are not exactly in point. They are cases

in which either the directions given by the Court for the sale had not been carried out by its own officer or the conditions attached to the sale had

not been complied with and it was held that the Court had jurisdiction in each case to set aside the sales on the ground that the Court had inherent

jurisdiction to see that its own order was obeyed. The present case differs because, although the order should have been an order for sale subject

to the encumbrance, it was in fact an order for sale without reference to any encumbrance. It seems to me clear however that although these cases

do not strictly apply, in the circumstances of the present case the District Munsift was justified in making the order which he did to prevent an

abuse of the process of his Court. It was manifestly the duty of the appellant against whom an order had just been passed which had negatived his

contention that the property should be sold free of encumbrances not to allow the sale to proceed on the footing that there was no encumbrance on

the property. It was he who was in charge of the execution petition and on whom the application for sale depended and it was incumbent on him to

bring it to the notice of the District Munsiff that further particulars should be added to the proclamation, viz., that the property should be sold

subject to the encumbrance of Rs. 7,000. If the learned District Munsiff, as I hold, was justified in making an order u/s 151 of the CPC there is

clearly nothing in the contention that the appellant had not failed in his duty to the Court because the order on his application was made '' in another

suit and not in his own suit in which execution was proceeding. The duty lay on him to see that the sale was held subject to the encumbrance not

because the order against him in E.A. No. 795 of 1943 was made in one suit or in another but because an order, i.e., the order in E.A. No. 795

of, 1943, was made against him which negatived his contention and directed that the sale must be held subject to the encumbrance. In my opinion,

therefore, the decision of the lower appellate Court was correct. The appeal is dismissed with costs.

No leave.

The civil revision petition is unnecessary and it is also dismissed.