1. The petitioners in this revision application are the heirs of one Haji Aftab Ahmed Mahtabkhan. The said Haji Ahmed Mahtabkhan was a surety for a loan advanced by respondent No. 1 the Muslim National Co-operative Bank Limited, to one Shaikh Hasan Shaikh Rehman. Respondent No. 3 is the widow and heir of the said Shaikh Hasan Shaikh Rehman. Respondent No. 4 Abdul Latif Sayad Mohammed Saheb was another surety in respect of the said loan. Respondent No. 1 the Muslim National Co-operative Bank Limited, Poona, obtained an award against Shaikh Hasan and his sureties under the Bombay Co-operative Societies Act. Even after the award, the claim of the Bank was not satisfied. The Bank filed an application for execution of the award through the civil Court. It is not clear from the record before me as to what happened to the earlier darkhast filed by the Bank for exciting the award. On August 3, 1962, Regular Darkhast No. 875 of 1962 was filed by respondent No. 1 and the present revision application arises out of, the said darkhast.
2. In that darkhast the suit property situated at C.T.I. No. 237, Bhavani Peth, Poona, belonging to the deceased Aftab Ahmed, was sought to be sold for the amount due under the award. The amount, which was due on the date of the darkhast including the costs, was Rs. 817.63 P. It appears that this house was previously numbered as C.T.S. Nos. 237, 238 and 239 and at present it bears only one number, namely, C.T.S. No. 237. Aftab Ahmed had himself mortgaged the said property to respondent No. 1 Bank to secure a loan of Rs. 5,000 011 August 2, 1954, and under the terms of this mortgage the said property was taken over by respondent No. 1 Bank; and it is not disputed that the said property is in the possession of tenants and respondent No. 1 is collecting rent from those tenants.
3. In the darkest filed by respondent No. 1, a, sale proclamation in respect of the said house property was issued on August 5, 1963. The said proclamation neither mentioned the value of the property nor the in cumbrance on the property. The said proclamation was issued after serving Aftab Ahmed with a notice under Order XXI, Rule 66 on March 20, 1963. Aftab Ahmed resisted the darkhast by Purshis exh. 16, contending that the darkles was not in accordance with law and respondent No. 4 Abdul Latif had fully satisfied the amount due under the award and nothing- was due from the judgment-debtors. However, he never objected to the contents of the proclamation and the property came to be sold by public auction on September 25, 1963, by the Court to respondent No. 2 Kaliniuddin Asgaralli Godharawalla Bohri.
4. On October 23, 1963, Aftab Ahmed filed an application under Order XXI, Rule 90 of the Civil Procedure Code, in the darkhast proceedings, being Misc. Application No. 642 of 1963, praying that the auction sale held by the Court should be set aside. He urged that the sale was liable to be set aside because:
(1) The incumbrances were not disclosed in the sale proclamation.
(2) The sale proclamation was not effected on the spot.
(3) The panohnama of the property was not done on the spot.
(4) The second bid of the sale was not held on the spot.
(5) The notice under Order XXI r.22 was not issued.
(6) The sale was not proclaimed by beat of drums.
(7) The property was not properly described in the sale proclamation and nothing was mentioned about the income of the property in the sale proclamation.
(8) The decree-holder and the auction purchaser colluded and the property worth Rs. 60,000 was purchased for Rs. 12,025.
(9) Proper value of the property was not mentioned in the sale proclamation.
(10) The property is the house property and is situated at Poona. The decree-holder was knowing about the income of the property and recovered the rent. The annual rateable value of the property was fixed at Rs. 2,840/- by the Poona Municipal Corporation,
(11) The amount of assessment was wrongly mentioned in the sale proclamation.
(12) Respondent No. 1 had not given the true value of the house in the statement under Order XXI, r.66 and had purposely shown a much less value than the real value of the property and had not shown the incumbrances, which was a fraud,
(13) The house taxes were wrongly stated in the jahirnama.
(14) Aftab Ahmed did not owe to respondent No. 1 because respondent No. 1 was in possession of 8 shares of the Bank belonging to Aftab Ahmed of the value of Hs. 53/- each and the respondent No. 1 Bank had no right to sell or transfer the same.
(15) The respondent No. 2 was a manager of the Bank respondent No. 1 and all the transactions of the Bank were conducted on the advice of respondent No. 2 and respondent No. 2 had purchased the said house without the permission of the Court in contravention of law and particularly in contravention of the provisions of the law relating to the Co-operative Societies according to which the officer of the Bank was prohibited from purchasing the property of the debtor of the Bank.
5. The application filed by Aftab Ahmed was opposed only by respondents Nos. 1 and 2. Respondent No. 1 filed a written statement exh. 12 admitting that the house property was sold in Darkhast No. 875 of 1962, on September 25, 1963, for an amount of Rs. 12,025, as alleged in the application, but denied that the house was worth Rs. 60,000 and also denied all the other grounds mentioned in the application for setting aside the same. The collusion alleged between respondents Nos. 1 and 2 was also denied and it was stated that the applicant had suffered no loss as a result of the auction sale. Respondent No. 2 figured as the auction-purchaser and filed a written statement at exh. 24. He denied that there were any material irregularities in conducting the sale. He also denied that the property was worth Rs. 60,000, He denied that incumbrances were not disclosed in the sale proclamation and submitted that according to him, the description of the property given in the sale proclamation was sufficient to identify the property. He contended that he purchased the property in his individual capacity and not as the Chairman of the Bank.
6. The learned Second Joint Civil Judge, Junior Division, Poona, who heard the application, dismissed it on May 1, 1965, holding that there were no material irregularities or fraud in publishing or conducting the sale and further that no substantial injury was caused to the applicant Aftab Ahmed, as a result of sale or any proceedings therein. He was of the view that there was no convincing proof before him to show that the house was worth more than Us. 12,000 and it was not proper to accept the evidence of the applicant and one engineer Khire, whom he examined at exh. 101 to show that the property was worth more than Rs. 60,000. He discarded the report of the engineer, which showed that he valued the house at Rs. 45,000, on the ground that the report was made on August 25, 1964, and what was required to be determined in the present case was the valuation in or about September 20, 1963. He held that the valuation made by Khire was arbitrary and without good foundation. So far as irregularities or fraud were concerned, he said merely that there were no material irregularities or fraud in publishing and conducting the sale, without discussing anything whatsoever with regard to the points raised by the applicant, perhaps because he thought that, as he was of the view that the value of the house was Rs. 12,000, it was unnecessary to consider the grounds urged by the applicant in detail.
7. It appears that during the pendency of the above darkhast, Aftab Ahmed died and the petitioners appeared on the record as the heirs of Aftab Ahmed.
8. Feeling aggrieved by the said order, the petitioners filed Miscellaneous Appeal No. 98 of 1965. It was heard by the Assistant Judge, Poona at Poona, who dismissed it though he was of the view that the property was worth at least Rs 45,000. He held that although there were defects in the proclamation of sale, it was not established that any substantial injury was caused as a result of the irregularity in the proclamation of sale. He, therefore, dismissed the appeal on April 6, 1967.
9. Feeling aggrieved by the said decision, the petitioners have filed the present revision application. Mr. Mhamane, the learned Counsel for the petitioners, has urged that both the lower Courts have failed to exercise the power under Order XXI, Rule 90, of the Civil Procedure Code inasmuch as the applicant in this case proved beyond reasonable doubt that there were not only material irregularities and fraud in publishing and conducting the sale, but these irregularities and the fraud resulted in substantial injury to the applicant inasmuch as the house worth Rs. 60,000 was sold for a meagre sum of Rs. 12,025. Mr. Mhamane submits that no prejudice will be caused to anyone if the sale is set aside, because his clients have already deposited a sum of Rs. 1,000 on August 16, 1967, in the Court of the Civil Judge, Junior Division, where the execution proceedings are pending and since the sale is not yet confirmed, it is open to the Court to set aside the sale having regard to fill the facts and circumstances of the case.
10. Mr. 'Chitale, who appears for the decree-holder respondent No. l, says that his clients would be satisfied if the money which is deposited, is allowed to be taken by them. The revision application is, however, strenuously contested on behalf of the auction purchaser. Mr. Joshi, the learned Counsel for the auction-purchaser, has submitted that both the lower Courts in this case have come to the conclusion in exercise of the powers under Order XXI, Rule 90, of the Civil Procedure Code, that no substantial injury has been caused to the petitioners and since that is a finding of fact this Court has no jurisdiction to interfere with the orders passed by the two lower Courts.
11. In view of these contentions the first question that is to be considered in this revision application is as to whether there were material irregularities or fraud in publishing and conducting the impugned sale. As stated above, the Civil Judge in his judgment has held that there were no material irregularities or fraud without giving any reason, because he came to the conclusion that there was no substantial injury caused to the applicant. He held that there was no proof that the house was worth more than Rs. 12,000 and, therefore, he did not apply his mind to the irregularities or fraud alleged in respect of the sale as summarised by him at the beginning of his judgment. The learned Assistant Judge, however, considered the question of irregularities. He held that the proclamation of sale in this case did not properly describe the property inasmuch as the proclamation of sale merely mentioned the property as C.T.S. No. 237 without even stating that it was a house, property. He, however., merely stated that had it been stated in the proclamation of sale that the property to be sold was house property, it would have been better. He also held that so far as the omission in the proclamation to mention in-cumbrance in favour of respondent No. 1 is concerned, there was undoubtedly an irregularity because the incumbrance had to be mentioned under Order XXI, Rule 66, of the Civil Procedure Code, With regard to the absence of the value of the property in the proclamation of sale, the learned Assistant Judge held that, in view of the decision in Charandas Vasanji v. Dossabhoy Maganlal (1938) 41 Bom. L.R. 328, it was not necessary for the Court to value the property and to state the value in the proclamation of sale issued under Order XXI, Rule 66, of the Civil Procedure Code, 1908.
12. The learned Assistant Judge, in my judgment, was wrong in holding that even though the description of the property was not proper it was not an irregularity and all that could be said about it was that proper description was not given. A proclamation under Order XXI, Rule 66 has to be given in the form prescribed in Form No. 29 Appendix B to the First schedule of the Code of Civil Procedure and that form requires the proclamation to give the description of the property to be sold. Naturally a description must be a proper description. By the proclamation the public generally are invited to bid and it is difficult to understand how that proclamation can be proper if the description of the property is misleading. The learned Assistant Judge has held that the property had an annual rateable value fixed at Rs. 2,840 which was purchased by Aftab Ahmed for Rs. 15,000 in 1945, and in the face of these facts it was wrong on the part of the Court not to have mentioned that the property was house property. Under Order XXI, Rule 66, the proclamation must mention and specify as fairly and accurately as possible the property to be sold. How can it be said, when, the fact that the property which was being sold was house property is not mentioned, that the description was fair and accurate? By mere mention of the survey number a bidder would not know that a house was being sold. In my opinion, therefore, the learned Assistant Judge ought to have held that the omission in the proclamation to mention the property as house property was a material irregularity as the omission was contrary to the provisions of Order XXI, Rule 66(2)(a) of the Civil Procedure Code.
13. As stated above, the learned Assistant Judge held that there was material irregularity in publishing and conducting the sale in not disclosing the mortgage incumbrance on the property. He held that Order XXI, Rule 66(2)(c) of the Civil Procedure Code, required the Court to mention any in cumbrance to which the property was liable. The form of proclamation referred to above required the Court to give .details of the incumbrance to which the property is liable. This means that the Court must mention not merely the existence of the mortgage but should give all the details of the mortgage. Therefore, the learned Assistant Judge rightly held that inasmuch as the proclamation did not even refer to the existence of the mortgage in favour of respondent No. 1, it was hit by material irregularity as a result of contravention of Order XXI, Rule 66(2)(c) of the Civil Procedure Code.
14. Mr. Mhamane has contended that besides these two material irregularities, there was a further irregularity in not mentioning the value of the property. Ordinarily such a value has to be given in the description of the property but the learned Assistant Judge was right in holding that this cannot be considered as a material irregularity in view of the decision of this Court in Charandas Vasanji v. Dossabhoy Maganlal where it has been held that although the Court had powers to ascertain the value and mention it in the proclamation of sale, Order XXI, Rule 66 did not require the Court to do so; and hence omission to mention the value of the property cannot be considered as irregularity. That was a case where the judgment-debtor urged that the valuation of the property should be made by the Commissioner and mentioned in the proclamation of sale. The Commissioner rejected the submission and ordered the proclamation to be forwarded to the Sheriff without any mention of the value of the property. Beaumont C, J. disagreed with the view of the Calcutta High Court and agreed with the ruling to the contrary of the Madras High Court and held that Order XXI, Rule 66, merely lays down what the proclamation of sale is to contain, and it does not say that it is to contain any valuation by the Court. He also held that if in any case the Court thinks it desirable to value the property and state the value in the proclamation, it ought to state it under Order XXI, Rule 66(e). In view of this decision, it is not possible to accept the contention of Mr. Mhamane that the omission in the proclamation to mention the value of the property is a material irregularity.
15. Mr. Mhamane next contended that under Rule 57 of the Maharashtra Co-operative Societies Rules, 1961, the auction-purchaser, who at the time of the sale, was the chairman of respondent No. 1 Bank, was prohibited from purchasing the property. It was the duty of respondents Nos. 1 and 2 to bring to the notice of the Court the fact that respondent No. 2 was the Chairman of respondent No. 1 Bank and since; respondents No. 1 and No. 2 colluded and suppressed this fact at the time of conducting the sale, a fraud was committed on the Court and the Court held that sale in contravention of Rule 57 of the Maharashtra Co-operative Societies Rules, 1961. Rule 57 is as under:
Prohibition against being interested in contracts, etc.-(1) No officer of a society shall have any interest, directly or indirectly otherwise than as such officer-
(a) in any contract made with or by the society ; or
(b) in any property sold or purchased by the society ; or
(c) in any other transaction of the society, except as investment made or as loan taken from the society or the provision of residential accommodation by the society to any paid employee of the society.
(2) No officer of the society shall purchase, directly or indirectly, any property of a member of the society sold for the recovery of his dues to the society.
There can be no doubt that the impugned sale is in contravention of Rule 57(2) which prohibits any officer of the society from purchasing directly or indirectly, any property of a member of the society when the property is being sold for the recovery of his dues to the society. It is not disputed before me that Aftab Ahmed was a member of respondent No. 1 Bank. He had stated in the application filed before the executing Court that he held 8 shares of respondent No. 1 Bank of the value of Rs. 58 each. That fact was not denied in the executing Court. Surprisingly, however, that Court did not mention anything about this ground on which the sale was challenged. Even though, in the memorandum of appeal, that point was taken up, the Assistant Judge failed to apply his mind to the ground. The point further taken in the revision application filed in this Court is as follows:
The lower Appellate Court should have further seen that the sale has been attacked on the ground of fraud also inasmuch as the sale has been taken by respondent No. 1 in the name of respondent No. 2 who was admittedly the Chairman of respondent No. 1 Bank and who had been prohibited from taking the sale under the Rules framed under the Maharashtra State Co-operative Societies Act.
No affidavit in reply has been filed by the respondents and it is, therefore, undisputed that respondent No. 2 and respondent No. 1 colluded at the time of the impugned sale.
16. The word 'officer' is defined under Section 2(20) of the Maharashtra Cooperative Societies Act, 1960, as including a chairman. In these circumstances, both the Courts below committed a gross error in not dealing with this ground. Rule 57 is a rule framed under the Maharashtra Co-operative Societies, Act, 1960, and as such has the force of law. It was the duty of respondent Nos. 1 and 2, therefore, to bring to the attention of the Court that respondent No. 2 was the Chairman. I think that if this fact was brought to the notice of the Court, the Court would not have permitted respondent No. 2 to bid at the auction.
17. The allegation of collusion made by the applicant is justified because it appears that at the time of the impugned sale respondent No. 1 was represented by the Secretary of respondent No. 1 Bank in the proceedings before the Court. Normally, the Secretary would be guided by the Chairman respondent No. 2 and it is possible to -assume that the Secretary of respondent No. 1 did not bring to the attention of the Court the fact that respondent No. 2 was the Chairman of the Bank and he was prohibited from purchasing the property under Rule 57(2) of the Maharashtra Co-operative Societies Rules, 1961.
18. It is argued by Mr. Joshi that Rule 57(2) must be read in conformity with Rule 57'(1) and on proper consideration of the rule, Rule 57(2) applies only when the sale is effected by the society. This contention of Mr. Joshi has no merit. There is nothing to indicate that Clause (2) of Rule 57 is controlled by Clause (1) of Rule 57. The word 'sold' in Clause (2) is used with reference to the sale of the property of the member of the society to recover his dues to the society. It is not disputed that in the present case the impugned sale was held for the recovery of the dues of Aftab Ahmed against whom an award was passed as a surety for the loan taken by Shaikh Hussain. As stated above, Aftab Ahmed being a member, his property was being sold for the recovery of the dues to respondent No. 1 Bank. The sale in favour of respondent No. 2, therefore, directly attracted the provisions of Rule 57(2) and was a sale which could i never be effected by the Court as the Court is expected to hold sales in accordance with the law of the land. Respondent No. 2 was not competent to purchase the property and the Court was not expected to sell it to him. Respondents Nos. 1 and 2 suppressed the material fact from the Court that respondent No. 2 was the Chairman of respondent No. 1 Bank and thereby committed fraud in the conduct of the sale.
19. Next question is whether the two material irregularities mentioned | above and the fraud committed by respondents Nos. 1 and 2 on the officers of the Court appointed to conduct the sale, resulted in substantial injury to the petitioners. On this point the learned Assistant Judge, as stated above, held that the house was worth at least Rs. 45,000. But He was of the view that this was merely a question of adequacy of price and mere inadequacy of price was no ground for setting aside the sale unless it was occasioned by some irregularity and he went on to observe:
There was, in my opinion, only one irregularity namely that the incumbrance was not shown in the proclamation of sale, but an omission to mention incumbrance would not, of itself, be injurious to the jugdment-debtor, as it would only be likely to persuade the auction-purchasers to offer higher price.
This assumption of the learned Assistant Judge, in my opinion, is contrary to law and is not based on any facts proved. Any property mortgager] would be entered in the property register and any person who wants to bid at the auction could go and inspect the property register where he would find that the mortgage was mentioned. It is -undisputed that the property in dispute was in the possession of the Bank under a mortgage from 1961. A bona fide enquirer would have found this immediately as the Bank was recovering the loan. There is no evidence on the record to show that anybody was persuaded by the proclamation to offer a high price because the incumbrance was not mentioned: It is quite possible that no bidder came forward to bid for this property because the property was known to be in the possession of the mortgagee respondent No. 1. In the circumstances, the only inference that could be drawn from the facts proved in the Court was that the petitioners had suffered substantial injury in that the property worth at least Rs. 45,000 came to be sold for only Rs. 12,025 and this injury must have been caused as a result of the two irregularities committed in respect of the proclamation of sale and the fraud committed by respondents Nos. 1 and 2. There can be no doubt that if respondents Nos. ] and 2 had not committed a fraud, as stated above, the Court would not have allowed respondent No. 2 to bid at the auction, as the prohibition under Rule 57(2) is absolute and mandatory.
20. In these circumstances, I find that the two Courts below have erred in exercising the powers under Order XXI, Rule 90, of the Civil Procedure Code inasmuch as the facts and the circumstances of the case clearly establish that irregularities and fraud were committed in the publication and conduct of the sale and substantial injury would be caused to the petitioner if the sale is confirmed. Further both the Courts below acted in exercising' their jurisdiction illegally in not taking into consideration the contravention of Rule 57(2) and hence, this Court has jurisdiction to interfere in revision under Section 115 of the Civil Procedure Code.
21. The learned Assistant Judge appears to have taken a view that the two irregularities committed in the course of publication and conduct of the auction were waived by the petitioners and their predecessors, as the judgment-debtor did not make any grievance regarding the description of the property contained in the sale proclamation although he was served with a notice under Order XXI, Rule 66, relying on a passage under the caption 'Waiver of irregularity and estoppel' at p. 3225, Vol. Ill, 7th Ed., A.I.E. Commentaries on the Code of Civil Procedure. Now, I cannot understand how there could be a waiver when the judgment-debtor can, in law, make an application under Order XXI,. Rule '90. It may be that under certain circumstances an application under Order XXI, Rule 90 may be barred by res judicata. I cannot understand how the right to make an application under Order XXI, Rule 90 can be waived when there are no circumstances in the present case to indicate that Aftab Ahmed did waive his right to make such an application. He could make an application only when he found that there were material irregularities and fraud in publishing and conducting of the sale and these material irregularities and fraud resulted in substantial injury to him. How could he show this unless a sale was held? Mr. Joshi for respondent No. 2 has urged relying on a decision of the Supreme Court in Dhircndra Nath v. Sudhir Chandra : 6SCR1001 that an application under Order XXI, Rule 90 was barred by waiver if the judgment-debtor who had to object to the contents of the proclamation of sale did not raise an objection at the time of the proclamation of sale or earlier. That was a case where their Lordships considered the question in the context of the finding that there was no substantial injury and even though the judgment-debtor had a right to insist on proper valuation under Section 35 of the Bengal Money Lenders Act, he had not done so. With respect, Subbarao J., as he then was, speaking for the Court has also discussed the contents of the proclamation of sale in execution of the decree and has observed that in certain circumstances the objections which could be raised by the judgment-debtor, could be waived. It was held in that case, however, that the judgment-debtor was not entitled to challenge the sale as there was no substantial injury. With respect again, I agree that in certain circumstances an objection which could be raised by the judgment-debtor in an application under Order XXI, Rule 90 with regard to the proclamation of sale, could be waived by his conduct. In my judgment, the observation made in that case cannot help Mr. Joshi in his contention that in the facts and circumstances of the present case the right of the judgment-debtor to challenge the sale was lost as a result of his failure to object to the omissions in the proclamation of sale. As stated above, he gets his right to apply to the Court to set aside the sale only after the sale is held and he is able to satisfy the requirements under Order XXI and Rule 90. In the circumstances, the findings recorded by the learned Assistant Judge, relying merely on the passage in the A.I.E. Commentaries on the Code of Civil Procedure, must be set aside and it must be held that the present application was competent under Order XXI, Rule 90, of the Civil Procedure Code.
22. In the result, the revision application is allowed and the orders passed by the two Courts below are set aside. The prayers in the original Miscellaneous Application No. 642 of 1963 must be granted and the sale held by the executing Court on September 25, 1968, is hereby set aside. Under Order XXI, Rule 90 as well as under Section 151 of the Civil Procedure Code, the amount deposited by the petitioners in the executing Court may be taken into consideration by the executing Court to decide as to whether the decree is satisfied, on the basis of the liability of the petitioners till the date on which the amount was deposited. If the amount deposited is sufficient to satisfy the decretal sum as well as the interest upto that date, the entire amount should be paid to respondent No. 1. If the amount is less than the amount which is due on that day to respondent No. 1, the execution may proceed with respect to the balance. If on the contrary the amount is in excess, the surplus amount should be paid over to the petitioners. In view of the fact that the fraud has been committed by respondent No. 2 by concealing that He was prohibited from purchasing the property, respondent No. 2 is ordered to pay the costs of the petitioners &a; well as respondent No. 1 throughout. Rule made absolute.