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Judgment
Burn, J.—This appeal is from the order of the learned Subordinate Judge of Madura dismissing an application under Order 21, Rule 90,
CPC to set aside a sale of immovable property held in execution. The sale was held on the 13th of July, 1936. The application under Order 21,
Rule 90 was presented on the 11th of August, 1936 and was disposed of by the learned Subordinate Judge on the 16th of November, 1937. The
learned Subordinate Judge held that there were no material irregularities or fraud established in the case and that therefore the application to set
aside the sale could not be allowed. He dismissed it accordingly.
We have heard a very lengthy argument from Mr. K.S. Ramabhadra Aiyar on behalf of the appellant, the 2nd defendant in the suit, O.S. No.
114 of 1925. The appellant is the son of the 1st defendant in the suit and the suit was filed on a mortgage executed by the first defendant who
represented when he took the money from the lender that the hypotheca was his self-acquired property. The learned Subordinate Judge held that
the hypotheca was not the self-acquired property of the first defendant but joint family property. The suit was dismissed against the second
defendant ; but, on appeal to the High Court by the plaintiff, the High Court passed a personal decree for money against the second defendant
also, and indicated in its decree that the plaintiff could recover against the second defendant by proceeding in execution against his share of the
joint family property. The present application for sale is in respect of four items of joint family property which were attached in execution of the
decree.
The hearing of this appeal has been considerably complicated by the fact that learned Counsel for the appellant has chosen to abandon all the
grounds of irregularity and fraud which were alleged in the application to the lower Court under Order 21, Rule 90. He no longer contends that the
sale was vitiated by any irregularity or fraud in the conduct of the sale. What he contends now is that the sale was ab initio illegal and therefore
void; in other words, he says that the application to the lower Court ought not to have been an application under Order 21, Rule 90, as in fact it
was, but that it ought to have been an application u/s 47, of the Code of Civil Procedure. We have therefore heard no arguments with regard to the
usual allegation under Order 21, Rule 90, namely, that there was no proper tom-tom or that there was combination preventing adequate bidding or
that there was no proper advertisement of the sale; nor have we heard arguments on the point that the sale was adjourned without specifying the
hour of the date to which it was adjourned or on the allegation that the encumbrances had not been properly mentioned. Learned Counsel for the
appellant has devoted his arguments entirely to an attempt to show that the attachment itself and the sale in pursuance of it were illegal.
The first point taken by the learned Counsel for the appellant is that the sale in this case was in violation of the direction of the High Court in its
decree in A.S. No. 406 of 1930. The relevant portions of the decree are as follows:
(1) that the second defendant in the suit (the present appellant) also do pay to the plaintiffs the amount decreed by the lower Court in O.S. No.
114 of 1925 with subsequent interest...subject to the declarations that the plaintiffs are entitled to get a money decree in the suit as against the
second defendant and that the suit document is not binding on the second defendant as a mortgage ;
(2) that Clause 4 in the said decree be and hereby is deleted ;
(3) that plaintiffs be at liberty to execute the said decree by attaching and selling not only the share of the first defendant but also the share of the
second defendant in the joint family properties.
There is no dispute about the fact that these items, which were items of the hypotheca, were attached and brought to sale as the self-acquired
properties of the first defendant and were purchased by the decree-holder for about Rs. 43,000. There is also no doubt about the fact that he
applied to attach and bring to sale the interest of the second defendant also in these properties. Learned Counsel''s contention that the sale
proceedings in this case are in contravention of the High Court''s decree is based upon an allegation that these four items of immovable properties
did not constitute the whole of the joint family property in which the first defendant and the second defendant are co-parceners. He says that
besides these the joint family is entitled to vast extents of immovable property. He says that the only course open to the decree-holder in A.S. No.
406 of 1930 was to attach the share of the second defendant in the whole of the joint family properties and to bring that to sale to satisfy his
decree for money against the second defendant. He says that the attachment and sale of the second defendant''s interest in only a small portion of
the joint family property are illegal.
This contention is one which, I think, cannot be heard in this appeal. It has nowhere been alleged in the execution proceedings in the lower
Court, and it does not appear in the decree of the High Court which is being executed, that the joint family is possessed of any other properties
besides the items concerned in this sale. As the learned Subordinate Judge has pointed out the appellant has been aware of all the steps taken in
execution, and he has never brought it to the notice of the executing Court that he had a co-parcener''s interest along with his father in vastly
greater extents of immovable property and that therefore it was not in accordance with law to attach and sell his interest in these four items alone. It
is not, I think, absolutely clear that the holder of a money decree against one of several co-parceners is not at liberty to attach and bring to sale that
coparcener''s interest in a portion of the joint family property, but must proceed against his interest in the whole of the joint family property. Such a
proposition would lead to absurdities. For instance, in the case of a creditor holding a money decree against a minor co-parcener entitled to, say, a
half share in properties of very great value, it would seem to be absurd to require the decree-holder to bring to sale the judgment-debtor''s interest
in joint family properties worth perhaps ten lakhs in order to satisfy a decree for money for, say, Rs. 100. Yet, that would follow from the
contention put forward on behalf of the appellant in this case. It is only necessary to cite the decisions of the Calcutta High Court reported in
Collector of Monghyr v. Hurdai Narain Shahai I.L.R.(1879) Cal. 425 and of the Privy Council reported in (1883) L.R. 11 I.A. 26 (Privy Council)
in order to show that it is possible for a creditor to attach his judgment-debtor''s interests in a part only of the joint family property. But I would
prefer to decide the question with reference to the principle that the judgment-debtor cannot lie by in the executing Court with an allegation of this
kind, and then bring it up in appeal and found upon it a proposition of law to the effect that the sale is bad. I must agree with the learned Counsel
for the respondent that this allegation, namely, that the joint family properties consist of more items than were brought to sale, is an allegation which
would require an investigation into facts. The appellant ought to have brought this forward during the execution proceedings and, as he has not
done so, I think it is not proper to allow him to do so now.
The second objection made by the learned Counsel for the appellant is that the decree-holder brought the interest of the second defendant in
these four items of joint family property to sale without specifying what interest it was and indeed coupled with an allegation that the second
defendant had no interest in these properties. Learned Counsel for the appellant contends that the sale is invalid for these reasons, but there is no
authority for such a statement. Learned Counsel has only referred us to Section 60 (m) of the CPC whereby a merely contingent or possible right
or interest cannot be attached and brought to sale in execution of a decree. That provision clearly has no application. There is no question here of
the interest of the second defendant being a merely contingent or possible right or interest. What the decree-holder said was:
I wish to sell the interest of the second defendant in these items of property, whatever it may be. I do not know whether he really has any interest in
it. I contend that he has not and I have filed in the Sub-Court O.S. No. 75 of 1934 to establish that contention of mine. But however that might
turn out and whatever his interest might turn out to be when it is ascertained, I wish to bring it to sale.
There is no allegation that the interest of the second defendant is a matter of contingency or dependent upon any future happening. So far as it is
an interest at all it must ex hypo-thesi be a vested interest. The case reported in Pestonjee Bhicajee v. Anderson (1938) 2 M.L.J. 906 therefore
has no application; nor the case reported in Syud Tuffuzzool Hossein Khan v. Rughoonath Pershad (1871) 14 M.I.A. 40. I am not able to see
how the want of specification of the extent of the second defendant''s interest in the joint family properties could invalidate the proclamation or the
sale.
The third objection is that the order of attachment at first passed by the learned Subordinate Judge on the decree-holder''s application for
attachment was illegal. The order is : ""Attachment of the second defendant''s interest in this property by 28th March, 1935."" The contention with
regard to this point depends again upon the allegation that it was not permissible for the decree-holder to attach the 2nd defendant''s interest in
separate items of joint family property and that he ought to have attached the 2nd defendant''s interest in the whole of the joint family property.
There is nothing in the order passed by the learned Subordinate Judge to show that the property, the attachment of which was sought, was not the
whole of the joint family property or that the learned Subordinate Judge was ordering the attachment of anything less than the 2nd defendant''s
interest in the whole of it. This point therefore also fails, in my opinion.
For these reasons I think that this appeal ought to be dismissed with costs.
Mockett, J.
I entirely agree. Although frequently pressed to do so, the learned Counsel for the appellant has never been able to indicate to us that
anywhere on the record there appears any trace of this contention, on which this appeal has been argued fully today, having been mentioned. It is
quite clear that in the lower Court the appellant primarily went to attack the sale on the ground of the several irregularities to which my learned
brother has referred. He also argued that owing to the alleged uncertainty of the 2nd defendant''s position his rights, if any, in this property came
within the provisions of Section 60 (m) of the Code of Civil Procedure, being in the nature of spes successionis and therefore something that could
not be attached. The order invoked to set aside the sale was Order 21, Rule 90, and it is worthy of mention that there is no reference to Section
The appellant is now asking us to order an enquiry into a state of fact which was peculiarly within his own knowledge and which we are
satisfied was never mentioned to the lower Court. He is saying now that the decree-holder is seeking to execute the decree against part of a vast
estate. I am certain that this was never mentioned to the lower Court. I am equally clear that it cannot be raised before us. The Judicial Committee
have on two occasions dealt with positions similar to that which arises before us to day. In 12 I.D (N.S.) 363 (Privy Council) their Lordships,
referring to another decision of the Board in (1882) L.R. 10 I.A. 25 (Privy Council) said that if there was really a ground of complaint and if the
judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it
was, they ought to have come and complained. Their Lordships proceed:
It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could
lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the
execution creditor or decree-holder might be perfectly ignorant--that they should take no notice of that, allow the sale to proceed, and then come
forward and say the whole proceedings were vitiated.
I respectfully consider that these remarks are particularly applicable to the case before us. I agree that this appeal should be dismissed with
costs.