A. Sreenivasa Chariar vs T.N. Seshadri Iyengar

Horwill, J.—The respondents'' predecessor-in-title obtained a mortgage decree against the appellant and his elder brother, Anantachari,

these two being members of a joint family of which Anantachari was the manager. During the course of execution, the appellant, who was in the

army and went as a clerk overseas in March 1942, sent in petitions from time to time through his Commanding Officer asking the Court to stay

execution as his presence was essential for the proper disposal of the petition. Later on, after the sale was confirmed, he put in an application to set

aside the sale, which was dismissed; and it is against that order of dismissal that the present appeal has been preferred.

The question is whether, in view of Sections 6 and 10 of the Indian Soldiers (Litigation) Act of 1925, the lower Courts should have set aside the

sale. Section 6 says that the Court shall suspend the proceedings unless the interests of the soldier in the proceedinge are in the opinion of the

Court either identical with those of any other party in the proceeding or adequately represented by such party. Section 10 says that if the Court is

satisfied that the interests of justice require that the decree or order should be set aside as against the soldier, the Court shall... make an order

accordingly. Section 10 therefore empowers a Court to set aside a sale if it is of opinion that it is necessary in the interests of justice to do so.

Section 6 permits the Court to refrain from suspending the proceedings if the interests of the soldier are identical with those of any other party and

adequately represented by such party.

Since Anantachari, the elder brother of the appellant, was the manager of the family he was clearly the proper person to oppose, if necessary,

the execution of the decree against the family property. So that unless the appellant was able to show, that despite the fact that his brother was the

manager of the family, he did not adequately represent him or had done some act to prejudice him, he could not succeed in the application made

by him in the lower Court. The only act of Anantachari to which the learned advocate for the appellant could point to as being prejudicial to his

interests and thereby disentitled Anantachari to adequately represent him is the transaction, Ex. P-4, under which the decree-holder promised to

reconvey a portion of the property sold if the sum of Rs. 4,500 was paid within two years and six months of the date of the confirmation of the

sale. It is argued that by this document Anantachari sought to secure an interest personally to himself and adverse to the appellant, in that the land

was to have been conveyed to him alone and not to the two brothers. P.W. 2, who described himself as the agent of the first defendant alone,

deposed that it was not Anantachari''s intention to repurchase the property for the family; but the evidence of this witness has to be examined with

caution, as it is not at all improbable that he is working as much in, interests of the appellant as in the interests of Anantachari. There is no reason to

believe that Anantachari intended to secure this land for himself. In fact, he was unable to repurchase the land, because he could not raise the sum

of money required. There is no reason to think that even if the appellant had been present in Ohingelput during the course of execution of the

decree, he could have done anything which Anantachari did not do equally well for him.

It has been pointed out that on 15th July, 1943, the decree-holder sold for Rs. 11,500 the property which he had purchased in execution of the

decree for Rs. 6,500, which, it is said, is evidence of the inadequacy of the price paid and possibly an indication of some fraud. It has however to.

be remembered that a purchaser in Court auction is not often willing to pay the market price, as he knows that he may have to indulge in further

litigation and that during the years that elapsed between the sale and the re-sale prices of lands were rising very steeply.

We therefore agree with the learned Subordinate Judge that the interests of justice did not require that the sale of the land should be set aside.

The appeal is dismissed with costs.