MATHEN SIMON OF MUKALAL Vs. OUSEPH LOOKA OF MAKKIYIL
LAWS(KER)-1963-7-35
HIGH COURT OF KERALA
Decided on July 19,1963

MATHEN SIMON OF MUKALAL Appellant
VERSUS
OUSEPH LOOKA OF MAKKIYIL Respondents





Cited Judgements :-

PUNJAB SI SIND BANK SHIMLA VS. HIMACHAL LITHOGRAPHERS [LAWS(HPH)-2002-5-5] [REFERRED TO]
G JAYARAMA REDDY VS. STATE OF KARNATAKA [LAWS(KAR)-2005-4-1] [REFERRED TO]
PAILEE VS. KRISHNA PANICKER [LAWS(KER)-1971-1-22] [REFERRED TO]


JUDGEMENT

- (1.)In execution of a decree for arrears of dues passed against the defendants and charged on three Items of properties. Items 2 and 3 were purchased by the appellant on the 9th Meenom, 1123. On the 29tn Edavom, 1123, that is, more than 30 days after the date or the sale, defendants 4, 6 and 8 applied under O.21 R.87 and S.40 of the Travancore Civil Procedure Code, to set aside the sale, alleging fraud to the conduct of the sale and pleading that they came to know of it only on the 20th Edavom, 1123. It appeared that no notice under O.21 R.20 or under O.21 R.64 of the Travancore Civil Procedure Code was issued to defendants 6 and 8 on the execution petition upon which the sale took place. Defendants 4, 6 and 8 were confronted with the objection, that the application was barred under Art.151 of the Travancore Limitation Act of 1100, corresponding to Art.166 of the Indian Limitation Act. The first court held, that the sale was only voidable and not void and that consequently the application was barred by limitation under Art.151 aforesaid; the plea of fraud and of other irregularities alleged was negative. On appeal by defendants 4, 6 and 8, the Additional District Judge set aside the sale as against defendants 6 and 8 as void for the omission to issue, the notice, applying Art.165 of the Travancore Act corresponding to Art.181 of the Indian Act. Notices having been issued to the 4th defendant, the sale of his interests was held to be valid. This has become final. Although the 4th defendant also is a respondent to this appeal it is convenient to refer to defendants 6 and 8 hereafter as the respondents.
(2.)The proviso to O.21 R.20 of the Travancore Civil Procedure code, which was in force as the time of sale, read as follows:
"Provided that no order for execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment debtor has sustained substantial injury by reason of such omission". In view of this, as held by me in Kunjuvareed v. Marry, 1962 KLJ 402, the omission to issue the notice under O.21 R.20 cannot be held to Be a defect or jurisdiction and did not render the sale void, the omission to issue the notice under O.21 R.64 of the -- Travancore Civil Procedure Code also was not a detect of jurisdiction. On this, Were is the authority of a bench decision of this court in Kuttikrishnan Nair v. Maanavan Nair, 1959 KLJ 213 : (AIR 1959 Kerala 382), under O.21 R.66 of the Kerala Civil procedure Code, which substantially corresponds to O.21 R.64 or the Travancore Civil Procedure Code. There is no substance in the argument of learned counsel for the respondents, that by parity of reasoning in Kunjuvareed's case, 1962 KLJ 402 for the absence of a proviso to O.21 R.64 similar to that to O.21 R.20 as above, the dictum in kuttikrishnan Nair's case, 1959 Ker U 213 : (AIR 1959 Kerala 382) requires reconsideration. The scope and content of under O.21 Rule behave to be determined, having regard to the nature or the notice prescribed, the purpose underlying it, and other matters, and not on the terms of O.21 R.20.

(3.)The proper Article of the Travancore Limitation Act to apply is Art.151 and the respondents' application to set aside the sale would be barred under it, unless they can rely on S.18 of that Act, In their application, the respondents had alleged in effect in paragraph 1, that by the failure even to issue the notices to them, they had been kept out of knowledge of the execution proceedings from time to time and of the execution sale by fraud and in a later paragraph, they predated having known about the sale only on the 20th Edavom, 1123. It was contended that these averments did not amount to a plea under S.18, that the respondents were by means of fraud kept in ignorance of their right to make the application and Thommen Thomas v. john Simon, AIR 1957 Trav-Co. 153 was relied on where Varadaraja Iyengar, J. drew a distinction between fraud which vitiated the sale and fraud by which the judgment debtor was kept In ignorance of his right to make the application. Speaking with respect, mere is no doubt as to the soundness of this distinction, on the terms of S.18 of the Limitation Act. On principle, if me fraud antecedent to the sale was of such a nature as to suffice for the requirements of section is that fraud cannot be dismissed from consideration as having had its origin earlier. The fraud averred in paragraph 1 seems to be one of that category. The following observations of the Allahabad High Court in Mt. Sarvi Begum v. Ram Chander Sarup, AIR 1925 All 778 appear to be in point. The court observed:
"Owing to the fraudulent concealment of the proceedings by the decree holder all knowledge of the proceedings up to the time of sale was withheld, from the petitioner, then so long as she did not come to know of the sale, the effect of the fraud continued, and the only conclusion to which we can come is that she had been kept from the knowledge of the sale in consequence of the initial fraud practised by the decree holder. It is only after she became aware of the sale that she came to Know of her right to apply. Her case is that she did not come to know of this right earlier because of me fraud originally practised by the decree holder. Those observations derive support from Abdul Jamil v. Ambia Khatun, AIR 1939 Cal. 603 where, referring to a fraudulent concealment, the court said that,

"It would be necessary to show that through the fraudulent conduct of the decree holder or such other person against whom the application has been directed the judgment debtor had been prevented from having any knowledge of the sale proclamation or the fact that a sale had actually taken place".

For the above reasons, it must be held, that the averments In the application to set aside the sale are sufficient to attract S.18 of the Travancore Limitation Act, but whether fraud ot such a kind was made out, is a different question.

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