Venkatarama Ayyar vs Somasundara Vandayar

Lakshmana Rao, J.—The view of the lower Courts that the sale is void as against all the defendants is erroneous, and as pointed out in Manindra Chandra Nandi Vs. Rahatannessa Bibi and Others, the sale will be invalid only to the extent of the share of the legal representative of the deceased judgment-debtor who was not served with the requisite notice under Order 21, Rule 22, Civil P.C. There is, on principle also, no reason for holding that the sale is void in its entirety; and just as a decree may be had proportionate to the shares of those who have been impleaded, a sale too can be upheld to the extent of the shares of those who were duly served. Order 21, Rule 90, Civil P.C., is not applicable in so far as the petition is based on the absence of notice under Order 21, Rule 22, and the sale will be invalid only to the extent of the interest, if any, of the deceased, defendant 7. It is however urged that the sale was impugned on other grounds as well under Order 21, Rule 90, and the matter has not been inquired into. The order of the lower appellate Court is therefore set aside and the petition is remanded to the Court of first instance for disposal according to law in the light of the above observations. Costs up to date will follow and abide the result.