Case: Luka Mathai Vs. Neelakanta Iyer Subramonia Iyer

that the valuation suggested by the learned counsel is highly exaggerated because in his plaint even the plaintiff had only said that the value was Rs. 30, 000/-. In that case the final decree for sale in a mortgage suit and in the certificate for sale the number of the property in dispute was give as No. 160 instead of No. 1060, which was the real number but the property was otherwise fully described so that its identity could be clearly established. This Court held that as the khata number, the area and the boundaries given in the final decree and in the sale certificate tally with No. 1060, the identity is clearly established and there has only been a misdescription of the plot in the final decree as well as in the sale certificate by the omission of one zero from the plot number. In another passage, referring to the decision of the Privy Council in Thakur Barmha v. Jihan Ram Marwari ((1913) LR 41 IA 38.), Wanchoo, J., observed that the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. 12. It seems to us that it is clear from the details mentioned in the proclamation, which we have mentioned above, that the bidder, the owner and the auctioneer had no doubt about the identity of the property which was being sold. This was not a case of non-publication of the proclamation and, therefore, the rulings relied on by the learned counsel for the appellant have no application. 13. Under Section 32(2) of the Travancore Revenue Regulation (Regulation 1) of 1068 what is required is that previous to the sale, the Tehsildar shall issue a notice specifying the name of the defaulter, the position, tenure and extent of land and the buildings therein; the amount of revenue assessed on the land of upon its different sections; the proportions of the Public Revenue due during the remainder of the current Malabar year, and the time, place and conditions of the sale. In our opinion, the proclamation satisfies the requirements of Section 32(2). 14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court. 15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved. 16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before us. The High Court disposed of the cross-objections in the following words : The plaintiff has preferred a cross-objection pleading that the revenue sale ought to have been declared void with regard to the other items of properties included in the plaint schedule also. Admittedly they were the subject-matter of the attachment and proclamation which culminated in the revenue sale. No defect in the proceedings except the error in the survey numbers discussed above, to affect the validity of the revenue sale has been brought to our notice. The cross-objection has no merits and has only to be dismissed. 17. It is not quite clear whether the third ground was specifically taken in the cross-objections though ground No. 5 may perhaps cover it. Be that as it may, as the questions of jurisdiction and law are involved we have to deal with the point. Section 59 of the Travancore Revenue Recovery Regulation (Regulation No. 1 of 1068) reads thus : 59. All arrears of public revenue due to Government other than land revenue. - All moneys due from any person to Government which under a written agreement executed by such person are recoverable as arrears of public or land revenue, and all specific pecuniary penalties to which such person renders himself liable under such agreement, and also all sums declared by any other regulation for the time being in force to be recoverable as arrears of public or land revenue, may be recovered under the provisions of this regulation. 18. The learned counsel for the plaintiff contends that there is no written agreement which says that the moneys due under the bond can be recovered as arrears of public or land revenue. The learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale. 19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. Coming to the first point, there is no doubt that wrong revenue numbers were mentioned in the notice, dated May 5, 193910. We agree with this finding of the High Court. We are satisfied that on the material placed before us no other finding could be arrived atIn our opinion, the proclamation satisfies the requirements of Section 32(2)14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before usThe learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void.