JUDGMENT
Viswanatha Sastri, J.
1. The defendant-judgment-debtor is the appellant in this second appeal which is filed against an order of the lower Courts refusing to set aside an execution sale of his residential house held on 24-12-1945 and confirmed on 29-1.1946. The facts that have led to this application have to be briefly stated.
2. The plaintiff obtained a decree for money in O. S. No. 166 of 1935 on the file of the District Munsiff’s Court of Devakottah against the defendant, who was then a minor, on 1-4-1936. This decree was confirmed subject to a slight modification on 8-12-1936. There were previous applications for execution and the final order on the last execution application was passed on 8-4-1942 dismissing the execution petition for non-payment of batta. The judgment-debtor, who was a minor at the time of the decree and for some time thereafter, attained majority on 8-1-1941 and left India for Burma on 23-11941. Owing to the outbreak of hostilities he was detained in Burma and returned to British India on 27-3-1946. When he returned he found that his residential house had been sold in execution of the decree at the instance of the decree-holder who purchased the property himself. He there, upon filed E. A. No. 33 of 1947 to set aside the sale.
3. E. P. No. 168 of 1945 in pursuance of which the execution sale took place was filed by the decree-holder against the judgment-debtor treating him as a minor represented by his paternal grand father Perianna Chetty who was his guardian ad-litem. Since E. P. No. 158 of 1945 was filed more than two years after the date of the final order on the last execution petition, notice under Order 21, Rule 22, Civil P. C. had to be given to the judgment-debtor. When this notice went to Perianna Chettiar. the grandfather and guardian-ad-litem of the defendant, it was found that he was dead. Thereupon, the decree-holder filed E. A. No. 342 of 1945 praying for the appointment of a guardian-ad-litem afresh for the judgment-debtor treating him still as a minor. Notice of this application for the appointment of a guardian went to the mother and maternal uncle of the defendant who returned the notice stating that the defendant had attained majority and, therefore they could not function as guardian-ad-litem. This return was attested by the decree-holder. Instead of having the defendant declared a major and sending
notice to him, the decree-holder, apparently with a view to hasten execution proceedings, applied for the appointment of an officer of Court as guardian-ad-litem of the defendant treating him as a minor and the Court passed an order appointing an officer of the Court as guardian-ad-litem of the defendant. Thereafter, the mother of the defendant filed E. A. No. 889 of 1945 before the executing Court stating that the judgment-debtor had attained majority and praying for the removal of the officer of Court appointed as guardian ad-litem and for service of notice on the defendant as a major. This application was opposed by the decree-holder. It was obviously the duty of the Court to have investigated the truth of the assertion made by the mother and found out for itself whether the defendant was a minor or had attained majority. Instead of pursuing this course the Court dismissed E. A. No. 889 of 1945 on the representation of the decree-holder that he would take the risk of the execution proceedings being impugned by the judgment-debtor in case he was a major. The result was that the defendant continued to remain on the record as a minor represented by an officer of the Court as guardian ad-litem. There was nobody to defend his interests and a court sale followed almost immediately. It is this sale that is now sought to be set aside. The learned Subordinate Judge dismissed the application of the judgment-debtor to set aside the sale relying on two decisions of this Court reported in Seshagiri Rao v. Hanumantha Rao, 39 Mad. 1031 : (A. I. R. (4) 1917 Mad. 318) and Gopalarayudu v. Gopalakrishnayya, 1945-1 M. L. J. 284: (A I. R. (32) 1946 Mad. 325). In my
opinion, these decisions have no application to the present case. Here there was only one judgment-debtor and nobody else on the record as a co-judgment-debtor to represent or protect his interest in the execution proceedings as in the case in Gopalarayudu v. Gopalakrishnayya,
1945 1 M. L. J. 284 : (A. I. R. (32) 1945 Mad 325).
The judgment-debtor was not aware of the execution proceedings or of the court sale held in pursuance thereof. The plaintiff knew that the defendant was a major and was away in Burma and even after he had knowledge of this fact, represented that the defendant was a minor and got an officer of Court appointed as guardian-ad-litem. He resisted an application to have the judgment-debtor declared a major and for the issue of notice to him of the execution proceedings. He persisted in treating a major as a minor and conducted the execution proceedings with an officer of the Court as guardian-ad-litem. Under Order 21, Rule 22, Civil P. C. it is obligatory on the decree-holder to issue a notice to the judgment-debtor of an application for execution filed beyond two years of the order on the
previous application for execution. In the present case that notice has not been issued to the
defendant. For that reason the sale is vitiated
by illegality and has to be set aside on the
strength of the decision of a Full Bench of this
Court in Rajagopala Aiyar v. Ramanujachariar, 47 Mad. 288 : (A. I. R. (11) 1924 Mad.
431 F.B.). It, therefore, follows that the execution sale held on 24-12-1945 must be set aside,
(The rest of the judgment is not material for purposes of reporting.) (Leave to appeal is refused.)