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Sistla Ramakrishna Sastry Vs. Madduri Sundaramma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 40 of 1957
Judge
Reported inAIR1961AP500
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 66, 67(2) and 90; Limitation Act - Schedule - Article 181
AppellantSistla Ramakrishna Sastry
RespondentMadduri Sundaramma
Appellant AdvocateK. Venkateswararao, Adv. for ;K. Ramachandrarao, Adv.
Respondent AdvocateK. Madhava Reddy, Adv. ;
DispositionAppeal allowed
Excerpt:
.....date and place in proclamation is mere irregularity - enquiry can be made under order 21 rule 90 - held, sale made by appellant is valid. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least..........of the allahabad high court held:'the omission to specify the time and place of sale by means of a sale proclamation as prescribed by order 21, rules 66 and 69 was a material irregularity: vide babu ram v. inamullah, 25 all lj 302 : (air 1927 all 241), and abdul rauf khan v. mt. qamrunnissa, 1930 all lj 1062: (air 1930 all 542)'.the same view was taken, so far as the omission to mention the place of the sale concerned, by a division bench of the madras high court in tuljaram row v. ramachandra row, air 1921 mad 484. if the omission was merely an irregularity in publishing the sale, the defect was a matter for enquiry on the merits in the application under order 21, rule 90 c.p.c. it did not make the publication non-existent in the eye of the law and the sale void so as to attract article.....
Judgment:

Krishna Rao, J.

1. This appeal is brought by the decree-holder in S. C. No. 635 of 1950 on the file of the Court of the District Munsiff, Masulipatam and arises out of an application made there by the judgment-debtor under Order XXI Rule 90 and Sections 47 and 115 C.P.C. to set aside the sale in execution held on 20-12-1954. The learned District Munsiff dismissed the application on the ground that it was barred by limitation under Article 166, having been, filed on 7-2-1955 after the expiry of the period of 30 days allowed from the date of the sale.

On Appeal by the decree-Bolder, the learn-ed Subordinate Judge held following Venkateswara Ettu Naicker v. Ayyammal, : AIR1950Mad367 that in cases where there is no proclamation of sale at all, the sale is void and the application was governed by Article 181, which allows a period of three years. He accordingly found that the sale was void, allowed the judgment-debtor's application and set aside the sale.

2. In : AIR1950Mad367 , Krishnaswamy Nayudu, J. sitting singly held that where there was a total failure to make the proclamation under Order XXI, Rule 66 C.P.C. the defect was not a mere irregularity in the publication or conduct of the sale and it rendered the sale illegal and void. There, the only mode by which the proclamation was alleged to have been made was by the beat of tom tom at the instance of the process-server and the evidence in this respect was disbelieved by the trial court and by the first appellate court.

It was not brought to the notice of the High Court that there was proclamation by any other mode and therefore the learned Judge held that there was total failure to make the proclamation. The principle of this decision was followed in Srikakula Chinna Venkatanarayana v. Pannapati Elias, : AIR1954Mad1024 --by Rajamannar, C.J. sitting singly, who held that where there has been no publication whatever of the proclamation of the sale, there is no valid sale under the Code and the sale is void.

The particular facts and circumstances in which it was found that there was Do publication whatever of the proclamation of sale do not appear from the report of the decision. If the facts in the earlier decision form the criterion it may well be doubted whether a purchaser at a Court sale is bound to enquire whether there is unimpeachable or at least reliable evidence of proclamation by beat of tom tom on pain of his purchase being held void.

In this connection, I may recall the observation of Lord Hobhouse in Malkarjan v. Narhari, 27 Ind App 216 (PC) that if a purchaser

'is to be held hound to enquire into the accuracy of the court's conduct of its own business, no purchaser at a court sale would be safo'. For the purpose of this appeal, however, it is not necessary to canvass the correctness of the view taken in the two single Bench decisions aforesaid. Both the learned counsel have argued the appeal on the footing that they are binding on this court and that in a case where there is complete absence of publication of the proclamation of sale, the sale is void.

3. The main contention taken by Mr. K. Ramachandra Rao the learned counsel for the appellant is that this is not a case where it can he said that there is no publication of the proclamation whatever. He points out that the District Munsiff has mentioned in paragraph 6 of his order that the proclamation was published in a journal known as Vanitha Vihar, Rajahmundry and that this fact was not adverted to or negatived at all by the learned Subordinate Judge.

The learned Subordinate Judge merely dealt with the oral evidence as to the publication by the beat of tom tom in the village and held that there was no such publication. His inference that there was no proclamation at all cannot be correct if the sale was published in the journal, Vanitha Vihar of Rajahmundry, as found by the trial court. Sri K. Madhava Reddy, the learned counsel for the respondent took time to meet the contention, as the ground of publication in the Vanitha Vihar was not mentioned in the memorandum of appeal to this Court.

He has also produced a copy of the memo dt. 14-12-1954 filed on behalf of the decree-holder in E. P. No. 246 of 1954, the execution proceedings in which the sale was held. The memo mentions 'A copy of the Krishna Patrika in which proclamation has been published filed herewith may be accepted'. The copy of Krishna Patrika gives other particulars but does not mention the date and the place of the intended sale. On this basis, Sri K. Madhava Reddy argues firstly, that there was in fact no publication of the sale in Vanitha Vihar as directed by the Court under Order 21, Rule 67 (2) C. P. C. but only an unauthorised publication in another paper, Krishna Patrika, and that the publication amounts to no publication at all because the date and the place of the intended sale are not mentioned in it. As against this, Sri K. Ramachandra Rao urges that the copy of the memo dt. 14-12-1954 which has been produced, merely shows that there was probably a publication of the sale in the Krishna Patrika in addition to the publication in the Vanitha Vihar and that in any event, the failure to mention the date and the place of the sale would only be a material irregularity and would not make the publication itself non est.

4. On the question whether there was a publication of the sale in the Vanitha Vihar, the following entries in the note paper of the execution proceedings are relevant:

'15-10-1954 ............Proclaim and sell 20-12-1954. For hearing 24-12-1954. Publish in Vanitha Vihar, Rajahmundry.Sd. M. B. A. M. Prl. Dit. Munsiff 15-10-1954.24-12-1954: Publication filed. Sale knocked for Rs. 2,200/- in favour of the decree-holder. Call for further hearing. For confirmation of sale 31-1-1955Id. M. B. A. M. Prl. Dt. Munsiff, 24-12-1954.'

These entries clearly mean that the order to publish in the Vanitha Vihar was complied with to the satisfaction of the executing court. The District Munsiff in the present proceedings also definitely states in his order that there was a publication in the Vanitha Vihar. The respondent who took up the learned District Munsiff's order on appeal before the learned Subordinate Judge did not even allege in his grounds of appeal there that this statement about the publication in the Vanitha Vihar was erroenous. In these circumstances, I am inclined to agree with Sri K. Ramachandra Rao's contention that the copy of the memo produced merely shows that there was a publication in the Krishna Patrika and does not show that there was no publication in the Vanitha Vihar.

5. Hence, there are no grounds to distrust or reject the first court's statement of fact, as to publication in the Vanitha Vihar which was in compliance with the executing court's direction under Order 21, Rule 67 (2). It follows that this was a case where there was a publication of the sale, that the rulings in : AIR1950Mad367 and : AIR1954Mad1024 have no application and that the sale cannot therefore be held to be void.

6. Even assuming that the publication in the Krishna Patrika which is produced in this court on behalf of the respondent was the only publication of the sale, there is considerable force in the appellant's contention that the omission to mention the date and place of the sale would only be an irregularity and would not make the publication itself non est. An intending purchaser could have easily made inquiries of the decree-holder's advocate over whose name the publication was issued or of the court of the District Munsiff in which execution was notified and ascertained the place and time of the sale. In Harindra Nath Mukerji v. Bhola Nath Sahu, AIR 1937 All 407, a Division Bench of the Allahabad High Court held:

'The omission to specify the time and place of sale by means of a sale proclamation as prescribed by Order 21, Rules 66 and 69 was a material irregularity: vide Babu Ram v. Inamullah, 25 All LJ 302 : (AIR 1927 All 241), and Abdul Rauf Khan v. Mt. Qamrunnissa, 1930 All LJ 1062: (AIR 1930 All 542)'.

The same view was taken, so far as the omission to mention the place of the sale concerned, by a Division Bench of the Madras High Court in Tuljaram Row v. Ramachandra Row, AIR 1921 Mad 484. If the omission was merely an irregularity in publishing the sale, the defect was a matter for enquiry on the merits in the application under Order 21, Rule 90 C.P.C. It did not make the publication non-existent in the eye of the law and the sale void so as to attract Article 181 of the Limitation Act.

7. The lower appellate court's finding that there was no proclamation is reversed and it follows that the trial, court was right in dismissing the application under Order 21, Rule 90 C.P.C. as being barred by limitation. The appeal is allowed with costs throughout. No leave.


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