Radakrishnaswami Naidu vs V.A. Annamalai Chettiar and Another

The first contention of the 8th defendant. Appellant with which we have to deal is that the court sale in favour of the decree-holder respondent,

is null and void because although the 8th defendant was on record at the date of the sale as a minor, he had in fact attained majority sometime

previously. The Lower Court found that the 8th defendant had attained majority, after the decree was obtained against him and Mr. Bashyam

Aiyangar in arguing the appeal has not asked us to interfere with that finding. He has yrgued only that the 8th defendant was prejudiced in the

production of his evidence, because witnesses whom he had brought to court refused to stay for the adjourned hearing on the next day, preferring

to return to a festival in their village. The lower court was, we think, quite right in refusing to adjourn for the issue of process to these witnesses to a

later date. It was open to the 8th defendant to pay his witnesses batta and obtain orders from the court requiring them to attend on the adjourned

date. He failed to do so and took the risk of his witnesses being absent. It seems to us in the light of the circumstances referred to by the lower

court in its order on his petition for adjournment very doubtful whether he ever had taken steps to adduce evidence at all. But on the facts as he

himself admits them there is no cause for interference with the judgment on this ground.

Returning to the merits of the case, we take it that the 8th defendant had attained majority after the decree and before the application was made

to the court in pursuance of which the sale now under consideration was held. It is urged first that the sale was void, because the notice required by

Order 21, Rule 22, C.V.C. was issued to the person who had represented the 8th defendant before and after that date as guardian ad-litem and

not to 8th defendant himself. It is a short answer to this contention that Order 21, Rule 22 requires the issue of notice, only when no order has

been made against the judgment-debtor on any previous application within a year of the application, notice of which is in question. We find on

reference to the execution application on which the sale was held (and it is not disputed by the 8th defendant) that in E.P. No. 82 of 1918 the

order for the sale was made on 12-9-1918. The present application was presented on 8-9-1919; and therefore no question of the necessity for a

notice under Order 21, Rule 22, CPC can arise.

We turn then to the general plea that the proceedings were null and void or were at least irregular because the 8th defendant was on the record

as a minor in spite of his having attained majority before them. The answer given is that the 8th defendant in fact knew of the proceedings

throughout. It is not disputed that he did so, In fact it is admitted that he applied for an adjournment of the sale in order that he might pay the

decree debt. The only question is whether such knowledge on his part affords an answer to the objection. There is clear authority in Ramachari v.

Duraswami Pillai (1897) 21 Mad. 167, Sundararama Reddi v. Pattabirama Reddi (1916) 6 L.W. 272, and Seshagiri Rao v. Hanumanta Rao ILR

39 Mad. 1031, that such knowledge will do so; and we follow the decision in Sundararama Reddi v. Pattabirama Reddi (1916) 6 L.W. 272 in

holding that this is not the less so, because the plaintiff-decree-holder was throughout aware that the 8th defendant was a major. This contention

that the sale is void therefore fails.

We consider next whether the sale deed be set aside on the ground that it was conducted in an irregular manner and that by the irregularity

substantial loss was caused. There is in the circumstances already mentioned very little evidence on the record. As regards the occurrence of

irregularity other than that involved in the failure to implead the 8th defendant as a major we have the evidence of two villagers of no special

position that they never heard proclamation of the sale made in the village. There is on the other side the evidence of the defendant''s agent that the

proclamation was made. There is also the presumption which arises in such circumstances based on the regularity of procedure. We are not

prepared to hold that the sale proclamation was not published.

As regards the price realised there is undoubtedly the evidence of the 5th witness, a member of the Taluq and District Board, that the value of

the properties is Rs. 20,000 whereas they were sold only for Rs. 10,000. He however is willing to buy them in case the sale is set aside and is so

far interested. There is no further evidence on this point. We do not think it is established that substantial loss occurred. We have not been shown

how there is any connection between the price realised and the only one of the irregularities alleged, which can conceivably be regarded as

established, the holding of the sale without impleading the 8th defendant as a major, when it is not disputed that the 8th defendant was aware of the

sale and was himself asking for six adjournments.

In these circumstances (he appeal fails and is dismissed with costs.