Shiyali Vengu Chetti vs Valjee Kanjee and Company

Burn, J.—This is an appeal from an order of the learned District Judge of South Arcot dismissing an application said to be a petition u/s 47,

Civil Procedure Code. The petitioner was the second defendant in the suit and he alleged that execution proceedings taken in the District Court of

South Arcot were void. He said that those proceedings had all been taken during his minority and this application was in time because he had

presented it shortly after attaining his majority. The facts have been sufficiently stated in the order of the learned District Judge and there is no

necessity to state them again now. So far as we are able to see, there were no merits in the application, and there are none in the appeal.

The first contention of the learned Advocate for the appellant is that the District Court of South Arcot had no jurisdiction to go on with the

execution proceedings since the order of the High Court transmitting the decree to the District Court of South Arcot for execution was made

without notice to any guardian on behalf of the minor judgment-debtor. We think there is no substance in this contention. The act of transmitting a

decree for execution is a ministerial act. Vide Banku Behari Chatterji v. Naraindas Dutt (1927) L.R. 54 I.AA. 129 : ILR 1927 54 Cal. 500 : 52

M.L.J. 565 (P.C.) and Nachiatnma Achi v. Subramonian Chetti I.L.R.(1927) 5 Rang. 775. Such an order can be passed even ex parte. There is

nothing in Palaniappa Chettiar v. Valliammai Achi I.L.R.(1928) 52 Mad. 590 : 56 M.L.J. 555 to conflict with this. It must also be in mind that in

this case this objection is raised by the appellant more than two years after confirmation of the sale held in execution. We have not been referred to

any authority to show that a sale in execution is a nullity merely because the order for transmission was made without the appointment of a guardian

for the minor judgment-debtor.

The next contention on behalf of the appellant was that the District Court of South Arcot had no jurisdiction to sell the property at all because no

notice was given under Order 21, Rule 22. We find that the present appellant who was then a minor was represented by his natural father as the

guardian from the 31st August 1928. Up to that time it had been supposed that his natural mother Krishnaveni was his guardian and many notices

had been sent to her. On the 17th February 1928, she prayed for removal from guardianship and on the 31st August 1928 the learned District

Judge passed an order removing her from guardianship and appointing the natural father as guardian. On the same day the natural father as

guardian ad litem of the present appellant was allowed 10 days to file his counter, if any, to the execution petition. In these circumstances it is quite

clear that no useful purpose would have been served by giving formal notice under Order 21, Rule 22 to the natural guardian. Nor can the absence

of such a notice vitiate the sale or render it a nullity. See Chandra Nath Bagchi v. Nabadwip Chandra Dutt (1930) 53 C.L.J. 329.

A further point taken on behalf of the appellant was that the sale was void because the attachment had been made in February 1928, which was

six months before the appellant''s natural father had been appointed as guardian ad litem. This also is a point without substance. It is well settled

that even if there were no attachment at all, a sale would not be set aside merely for want of it. Vide Subramania Aiyar v. Krishna Aiyar (1925) 51

M.L.J. 172. Still less could the facfthat attachment had been made before the guardian was appointed make any difference. The minor was

represented during all the sale proceedings after the 31st August. The natural guardian, as we have already said, was given an opportunity to show

cause, if any, against execution. He was given a notice; for settling the sale proclamation; he did not file any objections to the execution and he did

not apparently file any objections to the sale proclamation. He did, however, after the sale had been held, file on behalf of the minor a petition

under Order 21, Rule 90 to set aside the sale. We do not know on what grounds he asked that the sale should be set aside, but we do know that

the petition was dismissed for default. There are no other points to be discussed in this appeal which is dismissed with costs.

C.M.A. No. 431 of 1934. - In consequence of the dismissal of C.M.A. No. 404 of 1934, this appeal also must be dismissed with costs.