T.K.P. Paramasiva Thevar vs Pulukaruppa Thevar and Others

Spencer, J.—This appeal is concerned with an application to set aside a Court sale of mortgaged property which took place on November

21st 1919- It was filed by the 6th defendant on January 17th 1920 more than 30 days after the date of the sale and was rejected by the

Subordinate Judge as being out of time. The learned District Judge confirmed his order.

It is now contended that the omission to publish -the sale in Rayagiri, which is the village where the land is situated, was not a mere irregularity

but an illegality, that the petition though treated by the Subordinate Judge in his judgment as an application under Order XXI Rule 90 of the CPC

was properly (as it purported to be) one u/s 47 and that the Limitation period in such cases is 3 years under Article 181 of the 1st schedule of the

Limitation Act.

Assuming that the publication of the sale notice in Sivagiri, the parent village to which the suit land belongs according to the plaint and the

mortgage deed, and the failure to publish it in Rayagiri was something more than a material irregularity in publishing the sale, we have to see

whether a party to the suit who asks to have the sale set aside has 30 days under Article 166 or 3 years under Article 181 to come in with his

application.

It is clear that Article 181 is a residuary article which can only be applied if no other article dealing with applications under the CPC is

applicable.

Whether the ground for seeking to set aside the sale in this case is the commission of an irregularity or an illegality, and whether Section 47 or

Order XXI Rule 90 is the appropriate provision of law to be entered at the head of the petition, it is undoubtedly an application under the CPC to

set aside a sale in execution of a decree and thus falls within the definition in Article 166.

There is so much authority for the view that Article 166 applies to all such cases that it hardly needs demonstration that the residuary article 181

cannot be applied.

By ""authority"" I have in mind the cases in Nellu Neithiar v. Subramania Moothan (1920) 11 L.W. 59, Kamayya v. Ramanna (1922) 16 L.W.

936, Payidanna v. Lakshmi Narasimha 28 M.L.J. 525. (see the judgment of Sadasiva Aiyar, J.), Muthiah Chettiar and Another Vs. Bava Sahib

and Others, , C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others, , Satis Chandra Kanunpoe v. Nishi Chandra Dutta ILR (1919) C. 975

and Babu Das Narayana Singh v. Muhammad Yusuf (1921) 61 I.C. 823 (Pat.). Unfortunately so long as contrary decisions remain in the law

reports without being overruled it is possible to found arguments upon them. It has therefore become necessary to examine the cases which lend

support to the argument that Article 181 is appropriate.

It is not uncommon to hear a sale described as a nullity if there is an illegality affecting the jurisdiction of the executing Court, and illegalities are

commonly supposed to take applicacations to have sales set aside out of the scope of Order XXI Rule 90.

Ever since the Privy Council in Malkarjun v. Narhari (1901) ILR 25 B. 337 (P.C.) distinguished between a total absence of jurisdiction and an

erroneous working out of a valid decree against an estate after its owner''s liability is established, there should be no room for misconception. But

unfortunately it is not uncommon to hear the expression ""nullity"" indiscriminately applied to sales by Court, as if by that magical word the Statute of

Limitations was abolished. If in the present instance the sale was a nullity, there was no need for the appellant to apply to have it set aside u/s 47 or

Order XXI, Rule 90. He could simply ignore it so long as his possession was not disturbed.

Samandan Karkat Edathil Rayarappan Nambiar Vs. Malikandi Aketh Mayan, is one of the, cases in which a sale was held to be a nullity. It is

one of those rare instances where a person applies to be brought on the record as a defendant in execution. The decree-holder when executing the

decree after the death of the mortgagor (judgmentdebtor) failed to bring the mortgagor''s legal representatives on the record. So this

representative, having got himself placed on the record, applied to the Court to record satisfaction of the decree and incidentally to set aside the

sale held behind his back.

The learned Judges may have felt themselves justified by the circumstances of the case in adopting the somewhat unusual procedure but with

due deference I am unable to agree with their opinion that the sale was a nullity. It is unnecessary to repeat the reasons for my opinion which I

expressed at some length in Doraisamy v. Chidambaram Pillai (sic) that a sale does not necessarily become a nullity in consequence of a judgment-

debtor being dead and his legal representative not being on the record when it takes place.

The next case is Seshagiri Rao v. Srinivasa Rao 313 M.L.J. 62 (Seshagiri Aiyar and Moore, JJ.): The persons who applied to have the Court

sale set aside were parties to the suit who had been exonerated, but they had no notice of the execution proceedings. The learned Judges

recognised the fact that under the explanation to Section 47, a defendant who has been exonerated would yet be a party to the suit. Yet they

attempt to distinguish Muthiah Chettiar and Another Vs. Bava Sahib and Others, where it was held that Article 166 governed applications u/s 47

to set aside sale, on the ground that the application in that case was by a judgment-debtor. If the explanation to Section 47 means anything, this is

no distinction at all. There is no provision in the Code for persons who are not parties making an application with reference to a Court sale except

Order 21, Rule 89 which requires persons interested to make a deposit before the confirmation of the sale, that is, within 30 days of its taking

place, Rule 90 is available to persons entitled to rateable distribution besides persons having an interest in the property sold, and Rule 100 which

requires persons dispossessed by a purchaser in execution of a decree to come to Court within 30 days of their dispossession. Strangers to the

decree must under Article 12 file a suit within one year of the confirmation of the sale; or, if there has been fraud, then under Article 95 within three

years of their becoming aware of it.

I respectfully agree with the observations of Oldiield, J. in Ganapathi Mudaliar v. Krishnamachari (1922) 43 M. 313 . as to the soundness of

the reasons given in Seshagiri Rao v. Srinivasa Rao (1920) 43 M. 313 for applying Article 181 to the facts of that case.

The case of Shivbai v. Yesoo ILR (1918) B. 235 quoted by Moore, J. was one in which an ex parte decree had first to be set aside before

the ex parte defendant could ask to set aside the sale. She might have obtained an interim injunction against the execution of the decree or she

might have asked the Court to excuse the delay occupied in getting the ex parte order set aside. No definite reasons for holding Article 166

inapplicable are given in the judgment except that it would work harshly in the circumstances of that case. Ram Kinkar Tewari v. Sthiti Ram Janja

(1917) 27 C.L.J. 528 was a case u/s 18, Limitation Act of fraudulent suppression of process. Mookerjee, J.''s reasons for applying Article 181

are not explained.

Lastly there is the Full Bench case of Vachali Rohini v. Kambi Aliassan I.L.R.(1919) M. 753. This is an authority upon the scope of Article

165, not of Article 166, and its applicability to applications made by judgment-debtors u/s 47. On the same analogy it is argued that Article 166

should only be applied to applications made by persons who are not judgment-debtors. But the ratio decidendi of the Full Bench decision was a

comparfson of the language of Section 230 of the CPC of 1859 and that of Article 158 and 165 in the Limitation Acts of 1871 and 1908. The

scope of Article 166 must depend on quite different considerations, viz., the wide language of the Article itself and the change in language between

Section 244 and Section 47 of the Codes of 1882 and 1908 and between Sections 311 of the old Code and Order 21, Rule 90 of the new Code.

The Full Bench had before them a case in which a judgment-debtor complained that in executing a decree for possession more property had

been delivered to the decree-holder than what the decree authorised.

Without doubting the correctness of the decision that such a complaint would be governed by Article 181 of the Limitation Act, we may

consistently hold that the application before us which is one by a judgment-debtor to set aside a sale is covered by Article 166.

My learned brother agrees with me. The appeal is therefore dismissed with costs.

Devadoss, J.

This Second Appeal arises out of an application u/s 47 of the CPC to set aside a sale held in execution of a decree on the ground of fraud and

illegality in publishing and conducting it. The Subordinate judge of Tuticorin held that the fraud alleged was not proved that the sale was vitiated by

material irregularity as regards item 1, that the property was under-sold in consequence, and that the application was barred by Limitation. On

appeal, the District Judge of Tinnevelly held that the sale was not a nullity and that the application was barred by Limitation under Article 166 of

the Limitation Act.

The 6th defendant has preferred this appeal, and the sons of the decree-holder who was also auction-purchaser are respondents 1 and 2. Mr.

T. Rangachariar who appears for the respondents raises a preliminary objection that no second appeal lies as the application was made under

Order 21, Rule 90, C.P.C. and only one appeal is provided by Order 43, Rule 1(j) against orders under Order 21, Rule 90. Mr. A.

Krishnaswami Aiyar for the appellant contends that there was illegality in the conduct of the sale and the application was made u/s 47, C.P.C. and

not under Order 21, Rule 90, inasmuch as there was no publication of the sale in the village in which the property is situate as required by law, and

that such an omission is not merely an irregularity, but is an illegality, and where illegality is brought about by fraud or otherwise, the application to

set aside a sale falls u/s 47, C.P.C. and a second appeal therefore lies. It is unnecessary to decide this point in the view that I take of the question

of limitation involved in the case.

The sale was on the 21st November, 1919 and the application to set it aside was made on 17th January, 1920. Article 166 of the Limitation

gives a period of 30 days to set aside a sale in execution of a decree. The contention of the appellant is that Article 181 which allows a period of 3

years applies to the case and the application is therefore in time. It is argued that the words ""under the same Code"" in Article 166 should be taken

to apply only to applications specifically provided for by the CPC and not to applications under the general Section 47. The Article is in these

terms: ""Under the same Code to set aside a sale in execution of a decree...30 days...the date of the sale."" The wording of the Article includes all

applications made under the Code to set aside a sale, and unless there are very strong grounds for holding that it was meant to apply only to

applications specifically provided for by the Code under Rules 89, 90 or 91 there is no warrant for departing from the plain meaning of the words

of the Article. It is a well known principle of construction that where there is a specific article of limitation applicable to suit or application, the

residuary article should not be applied, unless the application or suit cannot he brought within the clear wording of the specific article. The appellant

relies, on the following cases in support of his contention. In Samandan Karkat Edathil Rayarappan Nambiar Vs. Malikandi Aketh Mayan, a

mortgagee brought a suit on his mortgage and impleaded the puisne mortgagee as a defendant. The puisne mortgagee died after the decree, and

the plaintiff brought the mortgaged property to sale without bringing the legal representatives of the puisne mortgagee on record and without giving

them notice and bought it himself. The legal representative of the puisne mortgagee applied to set aside the sale on payment to the plaintiff-auction

purchaser the amount due under the decree. The High Court held that the application was not barred by limitation as the sale was a nullity so far as

the appellants were concerned and the application was clearly not barred. The application to set aside the sale could not have been entertained and

the redemption of the prior mortgage could not have been ordered till the appellants were placed on record as the legal representatives of the

puisne mortgagee, an application under Rule 89 cannot be entertained as long as an application under Rule 90 is pending. Rule 89(2) specifically

lays down ""where a person applies under Rule 90 to set aside the sale of his Immovable property, he shall not, unless he withdraws his application,

be entitled to make or prosecute an application under this rule. The puisne mortgagee was entitled to redeem the prior mortgage and as his legal

representatives were not on record when the sale took place, they applied for relief as soon as they came to know of the sale of the mortgaged

property and therefore Article 166 was held not to apply to a case of that kind. Even if Article 166 should have been held applicable to that case,

the judgment could be supported"" on the ground that the appellants had no knowledge of the sale and they could not have come in therefore,

within the 30 days provided for by the Article. In Seshagiri Rao v. Srinivasa Rao ILR 432 M. 313, the plaintiff brought a suit for maintenance

against 12 defendants. Defendants 9 to 12 who belonged to a divided branch of the family and their shares were exonerated, and a decree was

passed against defendants 1 to 8 with a charge on certain items belonging to them. The plaintiff executed the decree and certain items of property

were brought to sale in execution as if they belonged to defendants 1 to 8 and were purchased by a person not a party to the decree. One year

and seven months afterwards, the plaintiffs who were defendants 9 to 12 filed a suit to set aside the sale so far as their shares were concerned. The

District Munsif dismissed the suit as being barred by Section 47, C.P.C. On second appeal, the High Court remanded the suit to the District

Munsif for disposal as a proceeding u/s 47. The District Munsif and the District Judge held that the application was barred by limitation. The High

Court held that Article 181 was applicable to the case and that the application was not barred. The learned Judges (Seshagiri Aiyar and Moore,

JJ.) observed at p. 350: ""If an execution sale is a qullity, i.e., is made without jurisdiction or is void ab initio, Article 166 has in our view no

application and the residuary Article 181 should be applied. We are justified on our conclusion by the decision in Ramavenkatasubbier v.

Subramania Chetliar S.A. No. 38 of 1914 (unreported). With very great respect I am unable to follow the reasoning of the learned Judges. The

appellants were parties according to the explanation to Section 47, which was expressly enacted to set at rest the conflict of view that prevailed

with regard to the parties to a suit but were not parties to the decree and they were bound to pursue the remedy as provided for by the Code. The

Judgment can however be supported on the ground that the appellants were not parties to the execution proceedings and they applied to set aside

the sale as soon as they became aware of the sale and the period of limitation had to be calculated from the time when they came to know of the

sale. In the present case the appellant was a party to the decree and the finding is that notice of sale was served upon him. The facts in Seshagiri

Rao v. Srinivasa Rao ILR 43 M. 313 being different from those of the present case, that decision has no application to the latter. In Ram Kinkar

Tewari v. Sthili Ram Panja (1917) 27 C.L.J. 528 it was held by the Calcutta High Court that omission to issue notice to the judgment-debtor was

an illegality and that was a sufficient ground for setting aside the sale and that Article 181 applied to the application in that case.

It is difficult to follow the reasoning that if there is illegality in publishing or in conducting the sale, Article 181 applies and if there is fraud or

irregularity, Article 166 applies. Order 21 Rule 90 enables a decree holder or any person entitled to share in a rateable distribution of assets or

whose interests are affected by the sale to apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or

conducting it. if a party is prevented by fraud from knowing of the sale, such fraud will prevent limitation running against him, or where he is kept

out of the knowledge of the illegality by means of fraud, he may contend reasonably that by means of fraud he was prevented from knowing or

having the means of knowledge of the illegality and therefore limitation should count against him only from the time when he discovered the

illegality. Section 18 of the Limitation Act would apply to such a case. Therefore there is no reason why when there is a specific article such as

Article 166 governing certain applications the aid of the residuary article should be invoked to help a party who could justify his application as

being within time by virtue of Section 18 of the limitation Act. It is urged that the reasoning adopted in a decision reported in Vachali Rohini v.

Kombi Aliassan ILR 42 M. 753 (F.B.) with regard to Article 165 should be applied to Article 166. In Vachali Rohini v. Kombi Aliassan ILR 42

M. 753 (F.B.) it was held by a Full Bench that where a judgment-debtor was dispossessed of Immovable property the Article applicable to an

application by him for restoration of possession was 181. The learned Judges in the course of the judgment relied on the fact that Order 21 Rule

100 applies only to a stranger to the decree seeking for restoration of possession and not to a judgment-debtor seeking a similar remedy. They

expressly overruled the decision in Ratnamier v. Krishna Doss Vittal Doss ILR 21 M. 494 which decided that Article 165 was the proper article

to be applied to an application by a judgment debtor who was dispossessed of Immovable property for restoration of possession. The decision in

Vachali Rohini v. Kandi Aliassan ILR 42 M. 753 (F.B.) being the decision of a Full Bench, no purpose would be gained by expressing doubts as

to its soundness. But I may be permitted to observe that the result of the decision is that a stranger to the decree and execution proceedings if

dispossessed of Immovable property has to apply within 30 days under Order 21 Rule 100 whereas a judgment debtor has 3 years under Article

181 of the Limitation Act to make a similar application by claiming the benefit of Section 47 C.P.C. Whether the legislature intended such a result

is neither necessary nor profitable to inquire.

In Sivbai v. Yesoo ILR 43 B. 235 the facts were. In 1906 an ex parte decree was passed against the defendant in execution of which the

defendant''s house was sold and purchased by the plaintiff decree holder in 1910. The ex parte decree was subsequently set aside. But at the

retrial a decree was again passed in plaintiff''s favour in 1914. In the meanwhile the defendant applied to have the sale of the house set aside. With

regard to limitation Hayward, J., observed: ""It was also suggested that the application ought to be regarded as time barred under Article 166 of the

schedule to the Limitation Act. But this article appears to be hardly applicable to the facts of this particular case. The cause of action accrued upon

setting aside the ex parte decree in 1914 and taking that as the date from which limitation ran, the application would clearly be within the time

under the provisions of Article 181 of the schedue to the Limitation Act."" In that case the right to apply to have the sale set aside arose only on the

ex parte decree being set aside. The Court could very well have held that Article 166 applied and that the delay should in the circumstances be

excused u/s 5 of the Limitation Act, and if there was fraud, u/s 18 of the Limitation Act. If Article 181 of the Limitation Act is the proper article

applicable to such a case, the question arises from what date should limitation be held to run against the applicant granting he has three years?

Under Article 164 time begins to run from the date of the decree or where the summons was not duly served, when the applicant has knowledge

of the decree. If no summons was served and the defendants came to know of the passing of the decree more than 3 years after it was passed, his

remedy to have the decree set aside is not barred till he comes to know of the passing of the decree. The learned Judges did not say from what

date time would begin to run against a person who seeks to set aside a sale on the ground that he was not aware of the passing of the decree. With

due respect, I think the proper course in such a case is to excuse the delay as the defendant was kept out of the knowledge of the passing of the

decree or had not means of knowing of the passing of the decree and there-tore he could not have made an application to have the sale set aside

within 30 days of the sale and therefore the delay in making the application should be excused. None of the cases to which I have already referred

have any direct bearing upon the present case.

In Muthiah Chettiar and Another Vs. Bava Sahib and Others, it was held that the application to set aside a sale u/s 47 C.P.C., was governed

by Article 166 of the Limitation Act. With reference Moore, JJ. observed at page 315: ""If an execution sale is a to the question of limitation

Oldfield, J., observes at page 607. ""It is not disputed that his petition was presented too late, if it was one under Rule 90. If however it was u/s 47

it is urged that Article 181 Schedule 11 of the Limitation Act applied and he was in time the special Article No. 166 covering only applications

under Rules 89 and 90. This restriction of Article 166 corresponds with nothing in its wording, which is absolutely general; and the attempt to

impose it has been supported by reference to the fact that the article was substituted for Articles Nos. 166 and 172 in the prior Act of 1877, which

related only to applications under Sections 310 A and 311 of the Code then in force. It is stated that this is borne out by the Statement of Reasons

and objects connected with the present Act. But it has not been shown how reference to such a statement is a legitimate or necessary aid to the

interpretation of a provision, the language of which is clear. The 1st respondent''s application, though it may have been made u/s 47, was one to set

aside a sale, and under Article 166 it must be held to have been out of time."" With the reasoning of the learned Judge I fully concur. In Neilu

Neithlar v. Subramania Moothan (1920) 11 L.W. 59, it was held that Article 166 was the proper Article applicable to an application to set aside a

sale. The learned Judges observe at page 62: ""It is then contended that, as the petitioners were parties to the litigation, the Article of Schedule I of

the Limitation Act to be applied is No. 181, not No. 166. This is contended, with reference ''to the recent decision of the Full Bench Vachali

Kohini v. Kombi Aliassan ILR 42 M. 753 (F.B.). But that decision dealt with a claim to apply Article 165; and we do not think that its application

and that of Article 166 stand on the same footing or can be dealt with on similar considerations. We have not been shown reasons for restricting

the very comprehensive wording of the latter to exclude the present case."" Another Bench of this Court held the same view in a case in C.

Ganapathi Mudaliar Vs. N. Krishnamachari and Others, . In C. Ganapathi Mudaliar Vs. N. Krishnamachari and Others, it was held that Article

166 of the Limitation Act was the proper article to apply to the application to set aside the execution sale, whatever its nature, whether it fell u/s 47

C. P. C, or under Order 21 Rule 90. The learned Judges observe at page 189; ""The wording of Article 166 is unrestricted and we do not consider

that we are at liberty to impose restrictions, which nothing in it suggests. It, no doubt, covers, only applications under the Code but that is

immaterial, as in the present case the controversy is between the parties and an application, instead of a suit, is authorised, by Section 47. We

therefore hold that Article 166 of Act IX of 1908 is applicable."" The same view has been held in Satis Chandra Kanungoe v. Nishi Chandra Dutta

ILR 46 C.975I.L.R. 46 C. 975. There also the learned judges refused to uphold a contention that Article 166 should be restricted to cases falling

under Order 21 Rule 89 and 90. They observe at page 977: ""It is argued for the appellant that Article 181 of the Limitation Act applies and not

Article 166. There appears to be no good reason for limiting the scope of Article 166 to applications under Order 21 Rules 89, 90 and 91 of the

Civil Procedure Code. The Article is perfectly general in its terms and refers to an application under the Code-to set aside a sale in execution of a

decree."" The same view was held by the Patna High Court Vide Babu Das Narayana Singh v. Muhammad Yusuf 61 I.C. 823 (Pat.). Following

these decisions I hold that this application is barred by limitation under Article 166 of the Limitation Act. The appeal therefore fails and is dismissed

with costs.