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Jagannath v. Perumal Naidu And Others
Factual and Procedural Background
The appellant is a third-party purchaser at a court-ordered sale of certain rights in zamin and private properties in Chingleput district. The properties were alleged to belong to members of a Joint Hindu family (Mitakshara) — specifically defendants 1, 3, 6 and the father of the 7th defendant (the four brothers), with defendant 2 being the son of defendant 1, and defendants 4 and 5 sons of defendant 3.
The family collectively held a half share in certain lands (decree under O.S. No. 43 of 1925 dated 16-11-1933), so each brother and his progeny were entitled to a proportionate part. Execution proceedings arose from a decree in O.S. No. 132 of 1930; E.P. No. 1289 of 1933 was filed by the decree-holder Chunilal Sowcar for sale of the judgment-debtors' shares. The executing court ordered (14-8-1934) that the decree-holder should first proceed against the one-fourth share of the first and second defendants and only if that proved insufficient, then against defendants 3 and 6.
A claim petition by the second defendant resulted (28-8-1935) in an order limiting sale to the first defendant's one-eighth. That order was later set aside in O.S. No. 55 of 1935 (decreed on 10-7-1937), which declared the second defendant's interest liable and restored attachment on the one-eighth, thereby permitting the decree-holder to proceed against a one-fourth share in the properties.
E.P. No. 1289 was dismissed on 14-12-1936 but the attachments were ordered to continue. Thereafter E.P. No. 308 of 1937 was filed (31-1-1937) for sale of the shares of defendants 1, 2, 3 and 6; proclamations (Exs. B.5–B.7) were issued and the properties were sold on 13-10-1937 to the present plaintiff (alleged kariastha of the decree-holder) for Rs. 70 (Ex. A.1). The plaintiff then sued for ascertainment of his purchased share and for allotment/possession. The lower court decreed partition in respect of the one-fourth share of defendants 1 and 2 but dismissed the suit as to the shares of defendants 3 and 6. The present appeal challenges that dismissal and the lower court's findings concerning the sale of the shares of defendants 3 and 6.
Legal Issues Presented
- Whether the sale under E.P. No. 308 of 1937 conveyed the rights of defendants 3 and 6 to the purchaser notwithstanding that those defendants were not served with notice of the execution petition and the sale proceedings.
- Whether a sale conducted in apparent violation of an earlier court order (dictating the order in which shares should be sold) is merely an irregularity (remedied by an application under O.21, R.90 CPC within the period prescribed by Article 166 of the Limitation Act) or is void ab initio when the affected judgment-debtors were not given notice.
- Whether E.P. No. 308 of 1937 should be treated as a continuation of the earlier E.P. No. 1289 of 1933 (so that fresh notice under O.21, R.66 CPC was unnecessary).
- Whether the suit for ascertainment/allotment filed by the purchaser was barred by limitation (the opinion notes this question was addressed in a connected appeal).
Arguments of the Parties
Appellant's Arguments (Mr. M. S. Venkatarama Aiyar)
- Even if E.P. No. 308 of 1937 violated an earlier order on the sequence of sale, that contravention amounted only to an irregularity and not a nullity; the appropriate remedy for aggrieved judgment-debtors is an application under O.21, R.90 CPC within the period allowed by Article 166 of the Limitation Act.
- Alternatively, contended that E.P. No. 308 of 1937 should be regarded as a continuation of E.P. No. 1289 of 1933 (in which attachments had been made and continued), and therefore fresh notice to defendants 3 and 6 under O.21, R.66 was unnecessary.
- Relied on precedents (including Vasudeva v. Mani Naika and others) to support the contention that procedural irregularities in the execution process do not render the sale void when affected parties have remedies under the procedural code and limitation law.
Respondents' / Defendants' Arguments (Mr. Gopalaswami Aiyangar and contesting defendants)
- Defendants 3 and 6 argued that they were not served with notice of E.P. No. 308 of 1937 and were therefore unaware of the execution petition and the sale; consequently, any sale in their absence is null and void ab initio and cannot bind their rights or properties.
- They further contended that E.P. No. 308 proceeded in direct contravention of the earlier order that the shares of defendants 3 and 6 could only be sold after exhausting the shares of defendants 1 and 2; because that sequence was not observed and because they had no notice, the sale of their shares must be treated as invalid.
- Respondents relied on authorities to the effect that where a court has no jurisdiction (for example because the owner had not been given notice), any sale on that basis is a nullity.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vasudeva v. Mani Naika, AIR 1953 Mad 683 | The remedy for a sale held on a different date than fixed in the proclamation is to apply under O.21, R.90 CPC within thirty days (i.e., such defects are treated as irregularities remediable under the Code). | The court held this authority inapplicable to the facts because the principal issue here was lack of notice to the affected judgment-debtors (not merely a sale on a wrong date); hence the precedent did not support the appellant. |
| Ammakutti Achi v. Doraiswami Aiyar, AIR 1928 Mad 140 | Held that a sale in contravention of a particular order in the decree is an irregularity (not void). | The court observed that this case did not involve absence of notice to the judgment-debtor; therefore it did not apply to the facts where lack of notice was decisive. |
| Palaniappa v. Arumuga, AIR 1917 Mad 877 | Observations that a sale in contravention of the order in which properties should be sold (as set forth in the decree) is only irregular and not void. | The court noted the observation but held that it was not decisive because the present case raised the separate and controlling question of notice to the owners. |
| Muthiah Chettiar v. Bawa Sahib, AIR 1915 Mad 392 | Dealt with sale irregularities but did not involve questions regarding notice of the affected parties. | The court found the authority not helpful on the notice issue which was central here. |
| Ramanathan v. Arunachalam Chetty, AIR 1914 Mad 261 | Where the court had no jurisdiction to sell properties, any sale held on that basis would be a nullity. | The court relied upon the principle in this authority to support its conclusion that a sale without notice (and hence without jurisdiction to affect those owners' rights) is void ab initio. |
| Mian Jan (Auction-Purchaser) v. Man Singh (Decree-Holder), 2 All 686 | Holds that sales made where the court lacks jurisdiction are nullities. | The court cited this authority alongside Ramanathan to reinforce the conclusion that sale proceedings conducted without notice to the affected owners amounted to a nullity and did not transfer their rights. |
Court's Reasoning and Analysis
The court proceeded by examining the execution petition records and the entries concerning service of notice in E.P. No. 308 of 1937. The record shows the following relevant operational facts:
- E.P. No. 308 was filed on 31-1-1937 and, after returns, represented on 27-4-1937. On 3-5-1937 the District Munsif ordered notice to the counter-petitioners (defendants 1, 3 and 6) under O.21, R.66 CPC.
- The subsequent entries (9-7-1937, 5-8-1937 and 14-8-1937) disclose endorsements such as "R. 1 served. Respondents 2 and 3 absent. Affixed. Absent. P.N Respondents 2 and 3. 5-8-1937", "Notice not returned. Await 14th August, 1937" and on 14-8-1937 "Absent. Proclaim and sell 13/10. Hearing 18/10". The properties were sold on 13-10-1937 and confirmed on 15-11-1937.
The court declined the appellant's invitation to infer effective service of defendants 3 and 6 from the sparse endorsement "Absent. Proclaim and sell 13/10." It emphasized the high requirement of fairness where a person’s property is sold: the court must be satisfied the person was given an opportunity to be heard. The court found the record too bald and meagre to justify a presumption that defendants 3 and 6 had been validly served.
On the appellant's alternative contention that E.P. No. 308 was a continuation of E.P. No. 1289 (so that fresh notice was unnecessary), the court examined the petition form and entries. It found no mention or indication in E.P. No. 308 that it was a continuation of the prior E.P.; in the column for previous applications it explicitly recorded E.P. No. 1289 as having been dismissed on 14-12-1936. For these reasons the court rejected the continuation argument.
The court considered the authorities cited by both sides. It held that several of the appellant's cases (which treat certain sales as irregular and remediable) did not address situations where the judgment-debtors were never given notice. By contrast, the court found authorities submitted by the respondents (Ramanathan and Mian Jan) supportive of the proposition that where a court has no jurisdiction to sell — for instance because the owner was not given notice of attachment and sale — any sale effected is a nullity.
Applying these principles to the facts, the court concluded that because defendants 3 and 6 were not served with notice of E.P. No. 308 of 1937, the executing court lacked jurisdiction to sell their shares. Consequently, the proclamations and sale held in their absence were null and void ab initio and did not pass their rights to the purchaser.
The court also noted a limitation question (whether the suit was barred) and indicated that it had expressed an opinion in the connected appeal that the suit was not barred; on that basis, the court declined further interference with the lower court's decision.
Holding and Implications
Holding: APPEAL DISMISSED.
Implications and immediate consequences as recorded in the opinion:
- The lower court's decision is upheld: the sale under E.P. No. 308 of 1937 is declared void ab initio as to defendants 3 and 6 because they were not given notice; their rights did not pass to the purchaser in respect of those shares.
- The purchaser (appellant) is not entitled to partition/allotment in respect of the shares of defendants 3 and 6 pursuant to that sale.
- The appeal is dismissed with one set of costs in favour of respondents 4, 5, 11 and 12 (the 12th respondent being the legal representative of the sixth defendant), as ordered in the opinion.
- The court recorded that it had expressed its view in a connected appeal that the suit was not barred by limitation; no further interference was made on limitation grounds in this appeal.
The opinion does not purport to lay down a new general principle of law beyond applying extant authorities to the facts: it rests its decision primarily on the absence of notice (and consequent lack of jurisdiction) in respect of defendants 3 and 6.
Govinda Menon, J.:— The plaintiff who is a purchaser in court-auction of certain rights in zamin and private properties situated in Chingleput district, and alleged to belong to some members of a joint Hindu family, is the appellant in this appeal. His suit for ascertainment of the share of the judgment-debtors and for recovery of such share by separate allotment has been decreed by the lower court only to the extent of the 1/4th share belonging to the first and second defendants and aggrieved by the dismissal of the suit with regard to the rest, he has preferred this appeal.
2. Defendants 1, 3, 6 and the father of the 7th defendant were members of a joint Hindu, family governed by the Mitakshara law. The second defendant is the son of the first defendant. Defendants 4 and 5 are the sons of the third defendant. In execution of the decree in O.S No. 132 of 1930 on the file of the District Munsif's Court of Chingleput, the share of some of the defendants had been brought to sale. The question is what exactly was the share that has been sold and purchased by the third party purchaser, who is the plaintiff. The family had a half share in certain properties obtained under a razinama decree in O.S No. 43 of 1925 in the same District Munsif's Court of Chingleput dated 16-11-1933. This half share belonged jointly to the four brothers, defendants 1, 3, 6 and the father of the 7th defendant and as such each one of the brothers and their progeny would be entitled to a one-fourth of this half share in the zamin and private lands. After obtaining a decree against the first defendant for a certain sum of money as well as against defendants 3 and 6 who stood surety for the production of the first defendant in the suit in the event of a decree being passed for the payment of the decree amount, E.P No. 1289 of 1933 was filed by the decree-holder Chunilal Sowcar who is alleged to be the master of the purchaser plaintiff against defendants 1 to 3 and 6 for the sale of their three-fourth share in the half share obtained by the joint family as a result of O.S No. 45 of 1925.
3. Attachment of the shares of the defendants was duly made after notice to them. Thereafter defendants 3 and 6 put in an application stating that their shares cannot be sold until and unless the share of the first defendant and his son in the joint family was sold and that only if the amount so realised was found not sufficient should their share be proceeded against. On 14-8-1934 the Court ordered that the decree-holder should proceed against the one-fourth share of the first and second defendants and if the amount realised by that sale was not sufficient to liquidate the entire decree amount, then only the share of defendants 3 and 6 should be proceeded against. After this order was passed, the second defendant filed a claim petition stating that his one-eighth share cannot be proceeded against for reasons which it is unnecessary to set out at this stage. The Court upheld the objection on 28-8-1935 and held that only the first defendant's one-eighth share can be sold.
4. Thereafter the sixth defendant filed O.S No. 55 of 1935 for a declaration that the order on the claim petition was wrong and that the decree-holder was entitled to proceed against the one-eighth share of the second defendant as well. This is rather a curious proceeding which inverts the ordinary state of things because the claim was by the second defendant and the aggrieved party was the plaintiff. But the reason why the sixth defendant filed the suit was that if only a one-eighth share in the properties was sold, then probably a part of the decree amount would remain unpaid in which case the shares of defendants 3 and 6 would be sold. Now this claim suit was decreed on 10-7-1937 and para 5 of the judgment in that suit was to the following effect:
“I therefore set aside the order passed on 28-8-1935 on the claim petition filed by the second defendant and declare that second defendant's interest in the suit properties is liable for the decree obtained by the fourth defendant (decree-holder in O.S No. 102 of 1930) against the first defendant in the said O.S No. 102 of 1930.”
5. The result of this adjudication is the complete erasing out of the order made on the second defendant's claim petition by which his claim had been upheld. By the decree in O.S No. 55 of 1935 the attachment on the one-eighth share had been restored and therefore the decree-holder was entitled to proceed against the one-fourth share in the entire properties. While the suit was pending the sale proclamation in E.P No. 1289 of 1933 relating to the zamin lands as well as other lands had been filed in court and they are evidenced by Ex. B. 2, B. 3 and B. 4. On 14-12-1936 the executing court dismissed E.P No. 1289 of 1933 for reasons which are not very apparent but held that the attachment of the shares not only of the first and second defendants but of the third and sixth defendants should also continue.
6. In this state of things, on 31-1-1937, the decree-holder filed E.P No. 308 of 1937 for the sale of the properties, viz., the shares of defendants 1, 2, 3 and 6. What was claimed in that petition was that three-fourth of the share in lot No. 1 and lot No. 3 and one-fourth or one-eighth in lot Nos. 2 and 4 should be sold. The proclamations evidencing the attempt at sale in September 1937 are Exs. B. 5, B. 6 and B. 7. In pursuance to this, the sale was held on 13-10-1937 and the properties were purchased by the present plaintiff who is alleged to be the decree-holder's kariastha for a paltry sum of Rs. 70. See Ex. A. 1. Three months before the last day of limitation, the suit out of which this appeal arose has been filed for ascertainment of the plaintiff's share and for recovery of possession after allotment of it to the plaintiff.
7. The contesting defendants in the court below were defendants 2, 3 and 6. The second defendant's plea was that he was not a party to E.P No. 308 of 1937 and the sale of his one-eighth share was therefore null and void. Defendants 3 and 6 put forth the plea that the sale in E.P No. 308 of 1937 was in direct contravention or violation of the earlier order made by the court in E.P No. 1289 and that the shares of defendants 3 and 6 should be sold only after exhausting the shares of defendants 1 and 2; and since that was not done but the entire rights of defendants 1, 2, 3 and 6 were proclaimed and sold by Exs. B. 5, B. 6 and B. 7 it was alleged that the sale of the shares of defendants 3 and 6 was a nullity and as such the purchaser was not entitled to have a partition of their shares. The lower Court upheld the contentions of defendants 3 and 6 but did not find it possible to agree with the plea put forward by the second defendant and therefore a preliminary decree for partition of the one-fourth share in the properties was passed and the suit against the shares of defendants 3 and 6 was dismissed.
8. The question very elaborately argued by Mr. M.S Venkatarama Aiyar on behalf of the plaintiff appellant is that even if there was a violation of a previous order directing the order in which the property should be sold, still it was only an irregularity and as such cannot be pleaded unless the aggrieved judgment-debtors had filed an application under Article 166 of the Limitation Act, to set aside the sale under O. 21, R. 90 of the CPC On the other hand Mr. Gopalaswami Aiyangar for defendants 3 and 6 contends that the entire proceedings evidenced by E.P No. 308 of 1937 and the proclamations Exs. B. 5, B. 6 and B. 7 should be deemed to be ‘ab initio’ void, as against defendants 3 and 6 because defendants 3 and 6 were not aware of the E.P No. 308 of 1937 at all and under those circumstances any sale held in pursuance of that application cannot bind them or their properties. On a perusal of E.P No. 308 of 1937 it is clear to us that defendants 3 and 6 were not served with notice of that application. This E.P after one or two returns was finally represented on 27-4-1937. On 3-5-1937 the District Munsif ordered notice to the counter petitioners in the E.P i.e, defendants 1, 3 and 6 under O. 21, R. 66 of the CPC
9. The next entry is dated 9-7-1937 and it reads: “R. 1 served. Respondents 2 and 3 absent. Affixed. Absent. P.N Respondents 2 and 3. 5-8-1937”. It is therefore clear that the first notice issued to defendants 3 and 6 had not been served on them. We find the next entry on 5-8-1937 by a successor District Munsif in the following terms: “Notice not returned. Await 14th August, 1937”. When the matter was again taken up for hearing on 14-8-1937, the following entry was made “Absent. Proclaim and sell 13/10. Hearing 18/10”. On 13-10-1937 the property was sold to third party Jaganath. Further details about the sale price of the various lots are also given. The confirmation of the sale took place on 15-11-1937. It is clear from a perusal of these entries that on 14-8-1937 when the execution petition came up for proclamation and selling the properties, defendants 3 and 6 had not been served. Mr. Venkatarama Aiyar wants the courts to infer that these defendants had been served because of the words “absent. Proclaim and sell 13-10”. In a matter like this where a person's property is being sold, which according to him was done in his absence, the court must be satisfied that he had been given an opportunity to put forward his plea before any such action is taken. Number of cases of this Court have laid down that such orders should be construed very strictly and we are not prepared to say from the bald and meagre endorsement contained on the E.P No. 308 of 1937 that defendants 3 and 6 had been served of that E.P
10. If that were so, the entire sale proclamation and the subsequent sales held in their absence should be deemed to be absolutely null and void ‘ab initio’, in which case the rights in the properties of defendants 3 and 6 have not passed to the purchaser at all.
11. Mr. Venkatarama Aiyar then argued that though E.P No. 1289 of 1933 was dismissed on 14-12-1936, the attachment against the shares of defendants 3 and 6 had been continued. It was unnecessary to give fresh notice to them under O. 21, R. 66 of the CPC, as E.P No. 308 of 1937 must be deemed to be a continuation of E.P No. 1289 of 1933. This argument lacks any foundation for the reason that in E.P No. 308 of 1937, there is no mention whatever that the same is a continuation. In fact in column 6 regarding previous applications, entries Nos. 1 to 6 deal with applications prior to E.P No. 1289 of 1933 and the 7th entry is as follows: “E.P No. 1289 of 1933 filed for attachment of defendants' immovable properties was dismissed on 14-12-1936”. Nowhere in this document do we find any indication that E.P No. 308 of 1937 was either intended to be, or should be deemed to be, a continuation of E.P No. 1289 of 1933. Therefore we are unable to accede to the contention of the learned counsel that E.P No. 308 of 1937 was a continuation of the old E.P
12. Mr. Venkatarama Aiyar invited out attention to various cases but on the facts of this case not one of them has any application. In — ‘Vasudeva v. Mani Naika’, AIR 1953 Mad 683 (A), the learned Chief Justice and Venkatarama Aiyar, J. held that if a certain date is fixed for the sale of immovable properties in the proclamation and the sale was held on another day, then the aggrieved judgment-debtor's remedy is to file an application under O. 21, R. 90 of the CPC, within the thirty days allowed by law and not to wait and say that the entire sale is void. We are of opinion that this decision has no relevancy at all. Three other cases were cited before us, viz., — ‘Ammakutti Achi v. Doraiswami Aiyar’, AIR 1928 Mad 140 (B); — ‘Palaniappa v. Arumuga’, AIR 1917 Mad 877 (C) and — ‘Muthiah Chettiar v. Bawa Sahib’, AIR 1915 Mad 392 (D). In AIR 1928 Mad 140 (B), it was held that a sale held in contravention of a particular order in the decree was only irregular. But that is not a case where at the time of the sale the judgment-debtor did not have any notice of the proceedings. So also in AIR 1917 Mad 877 (C) there are observations at page 878 to the effect that a sale in contravention of the order in which the properties should be sold as set forth in the decree is only irregular and not void. In AIR 1915 Mad 392 (D) also no question as regards notice arose.
13. On the other hand learned counsel for the respondents Mr. Gopalaswami Aiyangar invited our attention to two cases, viz., — ‘Ramanathan v. Arunachalam Chetty’, AIR 1914 Mad 261 (E), and — ‘Mian Jan…(Auction-Purchaser); v. Man Singh…(Decree-Holder).’, 2 All 686 (F), where there are observations to the effect that where the Court had no jurisdiction to sell the properties, then any sale held on such basis would be a nullity.
14. The jurisdiction to sell a property can arise in a court only where the owner is given notice of the attachment and sale. It is very plain that a person's property cannot be sold without he being told that it is being sold. In these circumstances we feel that since no notice of E.P No. 308 of 1937 was ever given to defendants 3 and 6, the entire proceedings were ‘ab initio’ null and void and the sale did not therefore convey any of their rights in favour of the purchaser. The decision of the learned Subordinate Judge on this point has to be upheld.
15. There is another point raised as to whether the suit having been filed more than six years after the date of the confirmation is barred by limitation or not, on which point we are expressing our opinion in the connected appeal to the effect that the suit is not barred. In these circumstances we do not find it expedient or just to interfere with the decision of the lower court and this appeal is dismissed with one set of costs of respondents 4, 5, 11 and 12, 12th respondent being the legal representative of the sixth defendant.
D.H.Z
16. Appeal dismissed.
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