Thommen Thomas vs John Simon and Others

Varadaraja Iyengar, J.—These second appeals are by the 2nd Defendant ire. O.S. No. 301 of 1112 of the Additional Munsiff''s Court Alleppey, are directed against two appellate orders of the court below respectively confirming two separate orders of the executing court which refused to set aside the court sale of item 2 and to order re-delivery thereof at the instance of the Appellant:

The decree in the case was passed on 29-10-1115 on basis of a Chitty security bond of 1099 executed by the 1st Defendant and charging items 1 and 2. The 2nd Defendant who was the husband of the 1st Defendant''s sister had been impleaded as the assignee of a subsequent mortgage of 110(1 created by the 1st Defendant in respect of item 2. It is a question in dispute between the parties as to whether the, 2nd Defendant was only a benamidar for the first Defendant in the matter of the mortgage assignment and whether he had any possession at all of item 2.

Steps in execution were commenced on 27-2-1117 with the issue of notice under Order 21, Rule 22, Code of Civil Procedure, to both the Defendants 1 and 2. The subsequent notice as regards settlement of proclamation was however issued to the first Defendant alone and item 2 was sold in court auction and purchased by the decree-holder ''himself on 3-8-1117 in part satisfaction of the decree. On 3-10-1117 a petition to set aside the sale was filed by the 1st .Defendant claiming to be in possession, under Order 21, Rule 90, Code of Civil Procedure, on ground of fraud and material irregularity in the publication and conduct of the sale.

The petition was, after trial, rejected by order dated 18-1-1119 subject however to liberty reserved to the 1st Defendant to avoid confirmation of sale by payment of the sale amount within 3 months. The 1st Defendant did not avail himself of the opportunity so afforded to save the property but took the matter to the District Court which dismissed his appeal on 9-3-1120. Subsequently on the motion of the Respondent, assignee of the sale sannad right over item 2 and of the balance decree amount, the property was delivered over from the 1st Defendant on 12-1-1122.

Soon thereafter on 31-1-1122 the 2nd Defendant applied in execution to have the sale and delivery proceedings set aside alleging fraudulent suppression of notices so far as he was concerned and claiming that his possession of the property was still undisturbed. The executing court found the at the 2nd Defendant had knowledge of the proceedings in any event on 11-10-1121 when he appeared in court to apply for time to file objections to the notice under Order 21, Rule 16 issued on behalf of the Respondent and that the present application filed more than 30 days later was therefore barred by limitation. The order was passed on 6-6-1952.

The 2nd Defendant took up the matter in O. M. A. No. 22 of 1952 before the District Court, There S. 18 of the Limitation Act was also sought to be pressed in aid to get over limitation but that court refused to accede and dismissed the appeal. Hence the second appeal S. A. No. 648 of 1954 herein.

Following the executing court''s order of 6-6-1951 as above, the 2nd Defendant made fresh application to the executing court on 4-7-1951 for re-delivery of the property alleging for the purpose that he had been actually dispossessed, as per the delivery order in the case. It was urged by- him, that whatever may have happened on his petition to set aside the sale, the delivery proceedings were illegal for want of notice to him and therefore he was entitled to re-delivery in any event.

The executing court found on this petition that he had no possession at any time and rejected it by order dated 14-2-1952. This order was in due course confirmed by the District Court In A.S. No. 271 of 1952. Hence the second appeal No. 649 of 1954.

S. A. No. 648 of 1954. Sri M. Madhavan Nair learned Counsel for the Appellant contended in this appeal that the courts below had misled themselves in applying the 30 days rule and commencing from the date of sale under Article 166 of the Limitation Act of 1908. The proper Article applicable according to learned Counsel was only Article 181 providing for three years from When the right to apply accrued, such accrual being on 12-1-1122, viz., the date of delivery, because the sale proceedings were all void as against the, 2nd Defendant either for want of proper service on him of the notice under Order 21, Rule 22 or for the failure to issue at all any notice to him ''for settlement of proclamation under Order 21, Rule 66.

Alternatively and assuming the sale was not void and therefore the one month rule applied then Section 18 of the Limitation Act should have been held properly applicable and so the sale avoided.

There is no doubt that Article 166 applies only where the sale is one which under the law has to be set aside and that it haw no application when the sale is inoperative and void, for if the sale is void it need not be set aside at all and the order to be passed is in substance merely a declaration that the sale is null and had no effect. See - ''Manmothanath Ghose v. Luchmi Devi Sri R 55 Cal 96 : AIR 1928 Cal CO) (A).

The question whether an application by a Judgment-debtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void, was governed by Article 1C6 or Article 181 came up directly for consideration in - Nirode Kali Roy Choudhury and Another Vs. Rai Harendra Nath Choudhury and Another, B. K. Mukherjea J., (as he then was) observed that:

Article 166 must be confined to cases where the sale is avoidable only and not void and when the execution sale is a nullity. If a party filed an application u/s 47 to have it pronounced as nullity or for setting/ it aside for safety''s sake to avoid future difficulties, the proper article would be Article 181 and not Article 106 of the Indian Limitation Act.

See also - ''Seshagiri Rao v. Srinivasa Rao'', ILR 43 Mad 313 : AIR 1920 Mad 402 ) (C); and - Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, In - Ma We Gyan v. Maung Than Byu'' AIR 1937 Rang 126 (E), it was held following the two Madras cases abovesaid that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer that would not affect the real nature of the amplication which was really, "for an order directing the Respondent to deliver property on the ground that there was no valid sale.

In a recent case before the Supreme Court - Merla Ramanna Vs. Nallaparaju and Others, a decrees against the Respondent had directed only a sale of mortgage rights and not of the properties but the sale in execution was of not merely the mortgage rights but of the properties themselves. The Respondent who was entitled to obtain relief, against the excessive execution by application to the I executing court u/s 47, Code of Civil Procedure, filed instead a suit to set aside the sale on ground that it was in 1 contravention of the decree and therefore void.

An objection having been taken by the Defendant-Appellant that the suit was barred u/s 47 the court while upholding the same hold that the plaint could be treated as an application under that section if it was in time as an execution application and the question arose for decision whether the application was governed by Article 166 or Article 181 of the Limitation Act. Venk&tarama Ayyar J., delivering the judgment on behalf of the Bench referred to the earlier decisions on the subject and liteld:

That when a sale in execution was inoperative and void an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by Article 181 and not Article 166.

The further question as to how, in such a case, the limitation is to be reckoned-whether from the date of sale or from the date of delivery or alleged dispossession was also considered in the Supreme Court case just cited. On this subject His Lordship observed as follows:

Under Article 166 an application to set aside a sale must be presented within 30 days thereof. But if the sale in question was void and for that reason Article 166 bakeries inapplicable then the date of sale must vanish as the starting point of limitation as it has no existence in law. It is not until the'''' purchaser acting under colour of sale interferes with his possession that the person whose properties had been sold is really aggrieved & what gives him right to apply under Article 181 is such interference or dispossession and not the sale.

and reference was made to AIR 1937 Rang 126 (E), and also - Chengalraya Reddy and Others Vs. Kollapuri Reddi,

In this case the 2nd Defendant''s application to court for relief was filed within 30 days of the delivery Kychit. He would therefore be within time if he is able to establish that the sale in execution was void on one or other of the two grounds relied on. Taking up the first ground as to improper service of the notice issued to him under Order 21, Rule 22, Code of Civil Procedure, we find from the endorsement of the process server, that the notice was served by affixture on the 1st Defendant''s house on the ground of refusal to accept by the 2nd Defendant who was there for the time being.

The process server examined as Dw. 1 also remained unshaken. The argument of learned Counsel for 2nd Defendant is that it is all false since the 2nd Defendant was employed as a clerk in the postal department in the Madras Province and his wife was a lady doctor in that same province. But taking into consideration the relationship between Defendants 1 and 2 and the admission of 2nd Defendant as to his having occasionally come over here, there is no reason to find that the endorsement was not truely made.

But even assuming that there was some irregularity in the service it is not a matter which affects the jurisdiction of the Court. It is one thing to say that there is no notice issued Under Order 21, Rule 22 in which case there will be a total absence of jurisdiction for the executing court to proceed further in execution and another thing that notice duly issued from court was not properly served in which case the party concerned could not ignore the result of the execution proceedings. See the Full Bench decision in - Ramlal Sahu and Others Vs. Mt. Ramia and Another, where it was held.

That an irregularity in the service of notice under Order 21, Rule 22 did not affect the jurisdiction of the Court in executing the decree and did not make the sale wholly ineffective.

The second ground relied upon viz., the non issue to the 2nd Defendant of notice in regard to settlement of proclamation does not also fare better. For the absence of notice under this rule will constitute only a material irregularity and does not affect the jurisdiction of the court. It therefore follows that the 2nd Defendant has failed to establish the essential condition for the applicability of Article 181 viz., the void ness of the court sale. The result is that the 30 days'' rule under Article 166 of the Limitation Act will alone apply to the facts of this case as held by the Courts below.

The only surviving question is whether, if Article 166 is to be applied. Section 18 of the Limitation Act could be invoked by the 2nd Defendant so: as to avoid the bar of limitation. Here again it has to be observed that the 2nd Defendant''s application does not contain the necessary allegations which can justify the invoking of Section18 at all. It is not alleged for instance that the 2nd Defendant had been kept out of the knowledge of his right to file the petition to set aside the sale on account of a fraud of the party against whom he had filed the petition.

Section 18 of the Limitation Act requires not merely proof of fraud to vitiate such sale but also proof of fraud which kept the judgment-debtor in ignorance of his right to make an application for setting aside the sale. It is incumbent on the applicant therefore to distinctly allege any particular fraud by which he had been kept from knowledge of his right to make the application against the decree-holder specifically and with detailed particulars. See Chengalraya Reddy and Others Vs. Kollapuri Reddi, .and Gulab Rai and Another Vs. Tulsi Ram,

In the petition filed by the 2nd Defendant the averments are all merely vague and general and do not contain anything specific. It is clear .therefore that the 2nd Defendant cannot seek the aid of Section 18 of the Limitation Act either. The concurrent orders of the Courts below dismissing the petition filed by 2nd Defendant on ground of limitation are therefore perfectly right. The .appeal fails in the result and is dismissed with costs.

S.A. No. 649 of 1954: This appeal naturally depends upon the connected appeal S.A. No. 648 of 1954 just disposed of. There is also the concurrent finding of the courts below that the 2nd Defendant had no possession at any time, which we find no reason to depart from. This appeal is therefore bound to fall and it is dismissed with costs.