VARADARAJAN Vs. MUTHU VENKATAPATHI REDDY AND ORS.
LAWS(MAD)-1952-9-30
HIGH COURT OF MADRAS
Decided on September 16,1952

VARADARAJAN Appellant
VERSUS
Muthu Venkatapathi Reddy Respondents

JUDGEMENT

Krishnaswami Nayudu, J. - (1.) IN O. S. No. 20 of 1937 on the file of the District Court of South Arcot a mortgage decree was passed on 6 -1 -1939 for a sum of Rs. 3540 -15 -4, the mortgagee being the first defendant and the 2nd defendant being his minor son represented by the father 1st defendant as guardian -ad -litem. One Muthu Venkatapathi Reddiar as the assignee -decree -holder brought the mortgaged property to sale, the sales having been held on 11th and 12 -9 -1944, and three parsons Mahadeva Goundan, Natesa Goundan and Swami Kannu Goundan and the decree -holder purchased the property at the auction. M. P. No. 302 of 1944 was filed on behalf of the minor second defendant for setting aside the sale under Order 21, Rule 90 and Section 47, C. P. C. Mainly on the ground that there was no proper advertisement and publication of the sale and that the property which was of the value of about Rs, 16.000 fetched a low price of about Rs. 6442. Sufficient security in Immovable properties was furnished on behalf of the second defendant -petitioner and during the pendency of the petition the 2nd defendant having become a major he was declared a major and he elected to proceed with the petition, executed a fresh security bond and registered it and the petition was posted for enquiry to 10 -4 -1945. The Court having been engaged in sessions work on that day the petition was adjourned to 10 -7 -1945. The petitioner was called on 10 -7 -1945 and found absent and his vakil reported no instructions with the result the petition was dismissed. From the endorsement on the petition it is seen that the advocate asked for adjournment, the adjournment was refused and the petition was dismissed. On 12 -7 -1945, the Court passed an order confirming the Sale . The petitioner filed a petition under Order 9 and Section 151. C. P. C. for setting aside the order of dismissal but the same was dismissed on the ground that such an application does not lie. Then he appealed to the High Court against the order of dismissal of M. P. No. 302 of 1944 in C. M. A. No. 447 of 1945 and by order of the High Court dated 28 -3 -1946 the District Judge of South Arcot was directed to restore the petition, M. P. No. 302 of 1944, on the petitioner paying to the respondents a sum of Rs. 500 as and towards their costs upto that date within one week of the reopening of the District Court. There is a further direction that the District Judge shall dispose of the petition on the merits in the light of the observations contained in the judgment. In the judgment, the learned Judge observed that the petitioner was a college student and his antecedent conduct with reference to the petition did not Justify the view that he was really unmindful of the petition and did not care as to what happened to it and that he should be given an opportunity to satisfy the District Judge that he had good grounds for non -appearance on the date of the hearing and that his petition was not a frivolous or vexatious one. The learned Judge's order proceeds as follows: "If the appellant pays within one week of the reopening of the District Court, Cuddalore, to the respondents a sum of Rs. 500 as and towards their costs of the proceedings held so far, to be retained by them in any event and irrespective of the result of the petition, the order of the lower Court will stand set aside and the petition will be restored to file and disposed of according to law. The District judge will first go into the question, whether the appellant had satisfactory grounds for being absent on 10th July, which is the subject -matter of the miscellaneous petition filed by the appellant for the restoration of the petition under Order 21, Rule 90, C. P. C. which was dismissed for default. If he is satisfied that the appellant had good grounds for non -appearance, the petition will be dealt with on its merits".
(2.) THE petitioner complied with the order for costs and it is found from the endorsement on the petition, that M. P. No. 302 of 1944 was restored to file on 27 -8 -1946. On 13 -8 -1946 the petitioner paid into Court the amount due under the decree and on 27 -8 -1946 he filed M. P. No. 187 of 1946 for vacating the order of confirmation of sale made on 12 -7 -1945. On 31 -8 -1946, the petitioner filed another petition M. P. No. 213 of 1946 under Order 34, Rule 5, C. P. C. and asked for setting aside the sales. All these petitions were heard and orders were passed on 25 -2 -1947 dismissing them. C.M.A. No. 117 of 1947 is against the order dismissing M. P. No. 302 of 1944, which was restored to file and which was for setting aside the sale under O - 21, R. 90, C. P. C. C. M. A. No. 355 of 1947 is against the order dismissing M.P. No. 187 of 1946 filed for vacating the order of confirmation and C.R.P. No. 390 of 1947 is against the order dismissing M. P. No. 213 of 1946 filed under Order 34, Rule 5, C. P. C. It is contended on behalf of the 2nd defendant -appellant that the learned District Judge erred in dismissing the petitions both on grounds of fact and of law. It is urged that M. P. No. 302 of 1944 having been directed to be restored to file by the High Court in its order in C. M. A. No. 447 of 1945 and accordingly restored by the District Court by its order dated 27 -6 -1946, the confirmation of sale made on 12 -7 -1945 after the disposal by the District Court on 10 -7 -1945 of M P. No. 302 of 1944 would stand automatically vacated and that, in any event, the learned District Judge erred in not vacating the order of the confirmation even on the application M. P. No. 187 of 1946 filed by the appellant. Further, it is urged that the learned District Judge erred in dismissing M. P. No. 302 of 1944 and that the evidence adduced did not justify the conclusion arrived at, namely, that the appellant had not sufficient cause for his failure to appear on 10 -7 -1945.
(3.) IT may be convenient to consider the order of dismissal on the merits before dealing with the other question raised. The direction of the High Court to the District Judge is that he should go into the question whether the appellant had satisfactory grounds for being absent on 10th July and if the District Judge was satisfied that the appellant had good grounds for non -appearance, he could proceed to deal with the application on its merits. From the conduct of this petition prior to the date of dismissal it will be seen that security was furnished while he was a minor and after he became a major he himself elected to proceed with the petition and further filed a security bond by himself. For the first time the petition was posted and came up for hearing on 10 -4 -1945 and on the ground that the Court was engaged with sessions work it was adjourned to 10 -7 -1945. In fact that was really the first day of the hearing.;


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