Ramaswami Goundar vs Muthuvel Goundar and Another

Panchapakesa Ayyar, J.—This is an appeal by one Ramaswami Goundar, a judgment-debtor in O.S. No. 244 of 1949 on the file of the

District Munsif, Dindigul, against the judgment and decree of the Subordinate Judge, Dindigul, in C.M.A. No. 6 of 1953 re versing the order of the

District Munsif, Dindigul, in E.A. No. 222 of 1952, in E.P. No. 381 of 1951, in O.S. No. 244 of 1949, allowing an application of this appellant

under Order 21, Rule 90 and Section 47, CPC and setting aside the sale held on 2nd January, 1952, of two kulis and odd of land belonging to the

appellant, and charged with a maintenance of Rs. 60 per year, in favour of his setp-mother Savadammal, the decree-holder. The facts were briefly

these.

In O.S. No. 244 of 1949, Savadammal got a maintenance decree for Rs. 5 per month against this appellant, and that amount was charged on a

house site and two kulis and odd of land valued in the plaint at Rs. 350, but really worth much more. Savadammal was also allowed to put up a

shed on the vacant site and reside therein. That is the house site charged -''with the maintenance. She was also allowed to recover Rs. 70-13-0 as

the consolidated costs from an amount in Court. The appellant did not pay the maintenance amount. So Savadammal, aided by her relative, the

present auction-purchaser Muthuvel Goundar, took steps, and E.P. No. 381 of 1951 was filed for recovering the arrears of Rs. 137-6-0 due by

then. The two kulis and odd of lands were brought to sale. The notice under Order 21, Rule 66, Civil Procedure Code, was, according to the

appellant, not served on him and a false endorsement that he refused the notice was procured by Savadammal and Muthuvel with the aid of the

process-server. The tom-tom too was not done. The result was that the appellant did not know that his properties were being brought to sale and

actually only one bidder bid at the Courtsale, namely, Muthuvel, the relative of Savadammal, and the man who had attested the false endorsement

of refusal of the notice under Order 21, Rule 66. I may mention here that the appellant''s contention was that the property brought to sale was

worth Rs. 4,000 and was got by Savadammal and Muthuvel falsely valued at - Rs. 950 by an amin sent by Court. Muthuvel was the only bidder,

and he bid for just a rupee above the upset price fixed by the Court on the amin''s valuation. The sale was knocked down in Muthuvel''s name, and

Muthuvel obtained an order for delivery. It is at this stage of delivery, on 1st April, 1952, to Muthuvel, that the appellant says he came to know of

the sale of his land. He therefore filed an application under Order 21, Rule 90 and Section 47, Civil Procedure Code, for setting aside the sale on

the ground of fraud in publishing and conducting the sale.

The learned District Munsif, Dindigul, after discussing the prevaricatory evidence of the process-server and the attestor, of the alleged refusal of

sale notice by the appellant, held that the alleged refusal was false,"" and that the notice was not really tendered to, or refused by, the appellant.

Discussing the contradictory evidence regarding the tom-toming, and acting on the admission of Suppan Madari,. P.W. 3, that he did not really do

any tom-toming, he held that there was no proclamation of sale by tom-tom also. He also held that the auction-purchaser Muthuvel and the plaintiff

Savadammal had conspired together with the process-server and others and procured false return of the refusal of the sale notice, and effectively

kept the appellant from knowledge of the sale. He held further that the lands sold for Rs. 951 would be worth at least Rs. 3,500, as stated by the

karnam, and possibly Rs. 4,000 as stated by the village munsif and the appellant himself. So, he held that there were material irregularities resulting

in substantial injury, and set aside the sale. He held that limitation would not operate, as the petition had been made within thirty days of the date of

the discovery of the fraud. So he allowed the petition with costs.

The auction-purchaser Muthuvel took the matter on Appeal. The Subordinate Judge, Dindigul, held after once again discussing the evidence;

that the sufficiency of the service of the sale notice on the appellant was not proved, though he was not prepared to say that the process-server had

not gone to the village at all. Discussing again the contradictory evidence of Suppan Madari, P.W. 3, regarding the tom-tom, he considered that

there was tom-toming believing one portion of that man''s evidence. He was also of opinion that as the land sold had been bought by the appellant

himself for Rs. 900, its sale for Rs. 951 to the auction-purchaser Muthuvel could not be said to be for a low price or to have caused any

substantial injury. Finally, he held that there was no adequate proof of material irregularity or substantial injury consequent on it, and allowed the

appeal with costs throughout, setting aside the orders of the learned District Munsif. Hence this C.M.S.A.

I have perused the records, and heard the learned Counsel on both sides. Mr. K.S. Naidu, for the appellant, and Mr. V.C. Veeraraghavan for

the auction-purchaser, argued the case fully and fairly. It is obvious that, in the light of the contradictory evidence, the conclusions of both the

District Munsif, one way, and of the Subordinate Judge, the opposite way, can be supported on portions of the evidence. Suppan Madari, P.W. 3,

supports the appellant''s case in chief-examination, and the auction-purchaser''s case in parts of the cross-examination. The fact also remains that,

though the lands were sold, for Rs. 951 and had been bought for Rs. 900, there had been great appreciation of land values since the purchase.

Against that must be set the fact that the sale to the auction-purchaser was subject to the maintenance charge of Rs. 60 per year in favour of

Savadammal. That maintenance charge must be held to amount to a capitalised sum of Rs. 1,200. So the real price paid by the auction-purchaser

Muthuvel was Rs. 2,151. This will take away much of the force of the argument of Mr. Naidu that the land was sold for a song. Still, there are

circumstances enough to enable me to interfere with the judgment and decree of the lower appellate Court., and pass in its stead an order equitable

to both sides.

Before doing that, I shall deal with the preliminary objection of Mr. V. C. Veeraraghavan that no Second, Appeal would lie in this case. The

argument cannot be sustained. As Mr. K. S. Naidu rightly pointed out, wherever there is a defect in the service of a sale notice under Order 21,

Rule 66, CPC and the petition for setting aside the sale relies on it also and puts in Section 47, Civil Procedure Code, a Second Appeal will lie, as

held by single Judges of this Court in (Kamana) Venkataswami Vs. Godavarti Nagayya, and Viswanatha Pillai Vs. A.M.V. Mutugappan Chettiar

and Others, , and by a Bench of this Court in Meyyappan Servai Vs. Sellappa Chettiar and Others, . It is clear to me that a Second Appeal would

lie in cases like these, and, after seeing the above rulings, Mr. Veeraraghavan also does not persist in his contentions.

Now we come to the merits of the case. In my opinion the appellant was not willing to pay any maintenance to the respondent till the Execution

Petition was filed, despite repeated requests and demands. He thought he could twist his fingers at the widow, Savadammal and forget that

Savadammal had a formidable ally in the auction-purchaser Muthuvel. Muthuvel was more than a match for the appellant. There is little doubt in

my mind that the appellant was not really shown the sale notice under Order 21, Rule 66, CPC and did not refuse it, and was not aware of the sale

of his lands till 1st April, 1952, when the lands were delivered to Muthuvel. Then he rushed with the petition under Order 21, rule go, Civil

Procedure Code, depositing the sale warrant amount in Court in lieu of security. It is not known whether he has withdrawn the sale warrant amount

so deposited. Mr. Naidu was not able to give me definite information about this, nor is it known whether the Rs. 951 put into Court by Muthuvel

has been with- '' drawn by the appellant or others. It is also clear that besides the sale warrant amount, the appellant had to pay Rs. 20 more to

Savadammal for maintenance at Rs. 5 per month, till 1st April, 1952, the date of delivery. I think that the income from the lands can be easily set

off against the maintenance amount of Rs. 60 due to Savadammal every year from 1st April, 1952. So there is no need for any mesne profits

enquiry till the date of re-delivery to the appellant by me under this decree. I direct the appellant to deposit into the District Munsifs Court,

Dindigul, by 3 p.m., on 15th July, 1958, Rs. 75 as consolidated costs in all the Courts to be paid to the auction-purchaser, Muthuvel, another Rs.

20 as maintenance due to Savadammal before 1st April, 1952 and not covered by the sale warrant amount, and the sale warrant amount, if

withdrawn by the appellant, and the Rs. 951 deposited by Muthuvel towards his bid, if withdrawn by, the appellant. On all these sums ''being

deposited by the said date, I direct the sale to be set aside, and the land delivered back to the appellant, charged with Savadammal''s maintenance

amount of Rs. 60 from 15th July, 1958, onwards and with no right for past mense profits till 15th July, 1958. If the sale warrant amounts of the bid

amount of Muthuvel are still lying in the lower Court, the appellant need not deposit those amounts, and Savadammal and Muthuvel can draw back

those amounts. If the appellant fails to deposit the amount as directed above, by 15th July, 1958, the order of the lower appellate Court will stand

confirmed, and this C.M.S.A. will stand dismissed without costs. The appellant is free to deposit the above amounts less amounts in Court earlier

than 15th July, 1958, as requested by Mr. Naidu, in which case the lands will be delivered back to him earlier, but the maintenance charge will also

attach to the lands from the date of the earlier delivery.