HIGH COURT OF KERALA
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(1.) "The erstwhile Cochin State obtained a decree dated 26. 4. 1110 in O. S. 1011 of 1107 on the file of the Muvattupuzha Munsiff's Court for money charged upon certain items of immovable property against three defendants who are Christian brothers. The first defendant executed a deed of settlement which is marked as Ext. III on 11. 2. 1113 creating an interest in presenti in one Ipe Varghese along with himself. The first defendant died in the year 1116. On 26. 11. 1116 an execution petition was presented. More than one year having elapsed after the previous application, notice under 0. 21 R. 20, of the Travancore Civil P. C. , corresponding to R. 22 of the Indian Code was ordered. Notices were served upon defendants 2 and 3. The notice issued to the first defendant was returned unserved with an endorsement that he was dead. The court posted the case to 30. 2. 1119 for impleading the legal representatives of the deceased first-defendant. Not having taken steps in that regard till that date, the decree-holder applied for time on 30. 2. 1119. That application did not find favour with the court and it was rejected. The next execution petition was filed on 29. 5. 1119. Therein the decree-holder stated that defendants 2 and 3 are the legal representatives of the deceased first defendant. There was a prayer for notice under 0. 21 R. 20. No notice, however, under that rule was issued but notice was issued for settlement of the proclamation of sale, under 0. 21 R. 64 of the Travancore CPC. corresponding to R. 66 of the Indian Code. Pursuant to this execution petition the court sold an extent of 1 acre and 25 cents in item 2 in the decree on 25. 12. 1119. Only defendants 1 and 2 were interested in this property. On 27. 1. 1120 the sale was confirmed. On 27. 5. 1120, two petitions were filed for setting aside the sale, one by the third defendant and the other by the said Ipe Varghese who claimed under the settlement made by the deceased first defendant as his legal representative. Both the applications were allowed by the court below by one order dated 7. 3. 1951.
(2.) LEARNED counsel for the appellant says that one appeal happened to be presented against the order upon the two petitions because one common order was passed disposing of both of them. Whether this is right or not and if not, what should be its consequence and whether and in what manner the defect could be cured are all matters for consideration.
The court below set aside the sale on the following grounds: 1. That Ipe Varghese is the only legal representative of the deceased first defendant and the sale conducted without him as a party on the record is a nullity. 2. That notice under O. 21, R. 20 which was prayed for and order was not issued and without the issue of such notice, the court had no jurisdiction to sell the property. 3. That the sale of property being in one lot, the defect that attaches to the interests of the first defendant would vitiate the sale even in respect of the interests of the 2nd defendant, and 4. That the sale being a nullity, an application to set it aside need not be presented within 30 days as required by Art. 151 of the travancore Limitation Act, but could be presented within 3 years under Art. 165 of the same Act.
Mr. Krishnamoorthi Iyer, learned counsel for the appellant seeks to have that order set aside on the ground that defendants 2 and 3 are and are the only legal representatives of the deceased first defendant and that Ipe Varghese is no legal representative, and that, in the alternative, assuming that Ipe Varghese was the legal representative of the first defendant, the decree-holder having bona-fide believed that defendants 2 and 3 are the legal representatives and proceeded with the execution with them on record on that basis, the proceedings in execution are proper and effective and the sale perfectly valid. In support of this alternative position, he relies upon a decision of this court in Varkey acha v. Thommen Anna (1949 KLT 1 ). This is as regards ground No. 1 depended upon by the court below.
(3.) AS regards ground No. 2 Mr. Krishnamoorthi Iyer contends that the non-issue of the notice under that rule does not affect the jurisdiction of the court to sell the property and that if at all it would only be an irregularity which would not render the sale void but only voidable and to avoid which an application has to be presented within 30 days under Art. 151 of the Travancore Limitation Act. On the question whether the issue of notice under 0. 21 R. 20 is a factor affecting the jurisdiction of the court, there is a keen conflict of judicial opinion.
On the third ground Mr. Krishnamoorthi Iyer's position is the converse of what the lower court thought. It is contended that when there is sale of property in one lot and there is a circumstance vitiating a part while the sale is in respect of the other is good, the part that is good would render the vitiating part also good. In any view, it is contended that the setting aside of the sale in its entirety is unjustified as the sale could be set aside piece-meal in respect of the portion which is vitiated. It is contended that the sale could and therefore should have been set aside only in part limited to the share of the deceased first defendant which sale alone could be said to have been defective.;
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