Decided on October 23,1970

Chandmull Amarchand By Power -Of -Attorney, K. Milopchand Respondents


K.S.Venkataraman, J. - (1.) THESE two appeals are against a common order dated 14th November, 1966 of the learned Subordinate Judge of The Nilgiris, in proceedings in execution of the decree in O.S. No. 167 of 1955. The respondent -firm, Chandmull Amarchand, obtained a decree on 7th November, 1956 in O.S. No. 167 of 1955 on a number of promissory notes executed jointly by J.M. Thippa Gowder, K. Petha Maistry and B. Gujja Gowder. The claim was barred against Petha Maistry and he died before the suit. Thippa Gowder also died before the suit. The suit was filed against one J.T. Joghee, the son of J.M. Thippa Gowder, in his capacity as manager of the joint family. Joghee was impleaded as the first defendant and Gujja Gowder as the second defendant. The decree was against B. Gujja Gowder personally and against the assets of J.M. Thippa Gowder in the hands of J.T. Joghee and the joint family. The decree was for Rs. 21,000 odd. E.P. No. 113 of 1960 was filed on 12th October, 1959 for impleading the legal representatives of Gujja Gowder. The petition was dismissed on 14th June, 1960. Then E.P. No. 763 of 1961 was filed on 5th October, 1961 and dismissed on 31st August, 1962 in view of E.P. No. 494 of 1962 which was filed on that day. In E.P. No. 494 of 1962 certain properties of the joint family of Joghee Gowder, his younger brother Natarajan and their mother Keppiammal, were sold on 29th October, 1962, and were purchased by the decree -holder, for Rs. 10,000. No petition was filed to set aside the sale and the sale was confirmed on 1st December, 1962. Since the decree was not fully satisfied, the decree -holder filed E.P. No. 721 of 1964. Natarajan and Keppiammal filed an application on 18th February, 1965, E.A. No. 76 of 1965, under Section 47 and 151 of the Civil Procedure Code to dismiss E.P. No. 721 of 1964. They filed E.A. No. 109 of 1965 on 19th March, 1965, under Sections 47 and 151 Civil Procedure Code to set aside the sale held on 29th October, 1962. These applications were dismissed by a common order dated 14th November, 1966. A.A.O. No. 95 of 1967 is against the order dismissing E.A. No. 109 of 1965 and A.A. O. No. 117 of 1967 is the appeal against the order dismissing E.A. No. 76 of 1965. The appeals have been heard together.
(2.) THE grounds taken in E.A. Nos. 76 and 109 of 1965 are common and are two -fold : (i) No notice was given to the appellants Natarajan and Keppiammal, though the respondent (decree -holder) knew that J.T. Joghee was not the joint family manager and was living apart from the appellants and was inimical towards them. There was collusion between Joghee and the decree -holder, (ii) The deceased Thippa Gowder led a reckless and immoral life and the debts which resulted in the decree were tainted by immorality. The learned Judge repelled these contentions on a careful analysis of the evidence adduced before him. He found that Joghee was the manager of the joint family and that the debts were not tainted by immorality. He also found that there was no collusion. Mr. R. Desikan and Mr. P. Bhaskaran, the learned Counsel who appeared for the appellants before us, were not able to urge anything to show that the reasoning of the learned Subordinate Judge was wrong on these aspects. There is, however, one other aspect on which they are entitled to succeed. We shall confine ourselves for the present to the sale held on 29th October, 1962 in E.P. No. 494 of 1962. It will be noted that one of the contentions is that no notice of the execution was ever given to them. The reply of the decree -holder is that notice went to the joint family manager, J.T. Joghee, and that that was sufficient. If, in truth, notice had been properly served on J.T. Joghee, the reply of the the decree -holder would be a sufficient answer to the contention of the appellants. But we find that that is not so. Taking up the first execution petition, E.P. No. 113 of 1960, it was filed for attachment and sale of the immovable properties in the hands of the legal representatives of the deceased second defendant, Gujja Gowder, whose legal representatives were sought to be impleaded as respondents 2 to 5. We are not now concerned with that prayer. The other prayer was for attachment and sale of the immovable properties belonging to the deceased Thippa Gowder "now in the hands of the first respondent (J.T. Joghee Gowder) as the joint family manager of Thippa Gowder's family." On 5th February, 1960, notice was ordered to be issued for the hearing on 15th March, 1960. We find that notice was issued to J.T. Joghee Gowder on 4th March, 1960. There is a postal acknowledgment among other things. The entry of the clerk on 15th March, 1960 was, "J.D. 1 and L.Rs. of J.D. 2 sought to be impleaded as respondents. Notice served." The endorsement of the Judge is "J.D. 1 called absent. N.L. for other J.Ds. counter 23rd March, 1960". On 23rd March, 1960, there was no Judge and it was reposted to 14th June, 1960. On 14th June, 1960, the endorsement of the Judge is "No counter." L.Rs. impleaded, petition dismissed." The entry on 15th March, 1960, and the postal acknowledgment show that J.T. Joghee was served. Hence it may be taken that in E.P. No. 113 of 1960 notice was served on J.T. Joghee, but he was absent.
(3.) THEN we come to the next execution petition, E.P. No. 763 of 1961. It was for attachment and sale of the properties mentioned in the Schedule to the execution petition. The person against whom enforcement of the decree was sought was mentioned as the first defendant, J.T. Joghee, son of Thippa Gowder. The execution petition was filed on 5th October, 1961. Because it was within two years of the order on the prior execution petition, 14th June, 1960, no notice was necessary under Order 21, Rule 22 of the Civil Procedure Code, because of the proviso. The fact that it was within two years of 14th June, 1960, was noted by the clerk. Hence straightaway an order for attachment was passed by the Judge on 7th October, 1961. The next entry dated 2oth November, 1961, is "Immovables attached on 31st October, 1961. Valued at Rs. 25,000. Sale papers 30th November, 1961." The time was extended for the filing of sale papers, and the sale papers were filed and there was the following endorsement of the clerk on 12th December, 1961 : "Sale papers checked. Sale notice 9th January, 1962." Then there is the following entry on 9th January, 1962 : "Batta memo, represented with a delay excuse petition. Issue 31st January, 1962." Then on 31st January, 1962, the clerk put up the following note : "Respondent not served," and this is followed by an entry of the Judge, "Respondent absent. Settlement on 3rd February, 1962," the terms of proclamation were settled on 3rd February, 1962, with the order "Proclaim and sell on 2nd April, 1962".;

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