(1) The main question that requires determination in this appeal is whether the petition filed by the judgment-debtors-respondents to set aside the sale is within time or not. The appellant is the decree-holder and auction purchaser in O. S. No. 72 of 1950 on the file of the District Munsif, Anantapur while the respondents are the judgment-debtors. In the execution of decree the properties belonging to the judgment-debtors were sold in E. P. No 124 of 1955 on 9-12-1955. Out of the entire properties sold three items of land were sold and purchased by the appellant for Rs. 715/- and the same was confirmed on 18-1-1956. Some of the judgment-debtors filed E. A. No. 355 of 1956 on 9-4-1956 to set aside the sale under O. 21 R. 90 C. P. C. and Sec. 47 C. P. C. alleging that fraud was played by the decree-holder. There was no proclamation of sale and consequently the property valued at Rs. 11,000/- was sold for a very inadequate sum of Rs. 715/- thereby causing substantial injury to the judgment-debtors. The petition was resisted by the decree-holder. The learned District Munsif, Anantapur on a consideration of the evidence adduced came to the conclusion that there was no fraud as alleged by the judgment-debtors. However, it held that there was no proclamation of sale meaning thereby publication and that it had caused substantial loss to the judgment-debtors. However, it held that there was no proclamation of sale meaning thereby publication and that it had caused substantial loss to the judgment-debtors. In that view, over-ruling the objection in regard to the intention it set aside the sale.
(2) The matter was carried in appeal to the District Judge, Anantapur. The learned District Judge formulated the following four points for determination :
(i) Whether the fraud pleaded by the respondents is true?
(ii) Whether there was no proclamation of sale? If so, is the sale vitiated?
(iii) Whether the respondents sustained a substantial loss on account of irregularity in the sale ?
(iv) Whether the application to set aside the sale was within the purview of Sec. 47 C. P. C. and not under O. 21 R. 90 C. P. C. The procedure for proclamation of sale is laid down under O. XXI Rules 66 and 67 C. P. C. R. 67 (1) provides that : 'Every proclamation shall be published, as nearly as may be, in the manner prescribed by R. 54, sub-rule (2).'
and rule 54 sub-rule (2) states that :-
'The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the Court-house. Where the property is land paying revenue to the Government, a copy of the order shall be similarly affixed in the office of the Collector of the District where the land is situated.
. . . . . . . . . . . . . . . .'
(3) It is conceded that both the courts on evidence have found that the proclamation of sale was not publicised property by beat of drum and that the copy of the order was not affixed on a conspicusous part of the property as contemplated in the rule. There is no evidence for or against the affixation of the proclamation order on the Notice Board of the Court House or in the Office of the Collector. The only fact proved is that the proclamation was published in a local newspaper having a limited circulation. Both the courts below commenting on the evidence adduced have come to the conclusion that there was no publication of sale at all in accordance with the procedure prescribed in Rule 54 sub-rule (2). This finding of fact could not be challenged. It has, therefore, to be held that there was no publishing of the proclamation in accordance with the procedure laid down in the Code of Civil Procedure. It is not necessary to comment on the objects and reasons behind this procedure. Suffice it to say, that the main object of the publication is not only to give the judgment-debtors and others an opportunity to raise objections, if any, as to the sale but also to enable them to provide suitable purchaser for the property in auction. If a sale is held surreptitiously without due publicity the very object of the procedure contemplated would be defeated. The mere publication in a local newspaper would not do away with the necessity of the proclamation of sale by bear of drum and by affixation of copies on the 'village chavdi' or court-house and in the Office of the Collector. It has, therefore, to be concluded that there was no publication of sale in the instant case.
(4) The learned counsel for the appellant even conceding that there was no proper publication has urged that the application to set aside the sale was hit by limitation as it is matter which came within the purview of Order XXI R. 50 C. P. C. The said order deals with application to set aside sale on ground of irregularity or fraud. It provides that :
'Where any immovable property gas been sold in execution of a decree, the decree-holder, or any person entitled to share in rateble distribution of assets, or whose interests are affected by the sale, may apply to the Court to set the sale aside on the ground of a material irregularity or fraud in publishing or conducting it.'
(5) The question is whether non-fixation of the proclamation is a material irregularity or no publication at all. The distinction between the two omissions is obvious. If there had been an application and there was some irregularity in the conduct of it, it would come within the purview of O, XXI, R. 90 C. P. C. provided it was a material irregularity whereas if the mandatory provisions of publication have been altogether omitted or not complied with there would be no publication at all in the eye of law and the matter would attract the provisions of Sec. 47, C. P. C. in the instant case, on facts, it has been found that apart from publication in a local newspaper the mandatory provisions of O. XXI, R. 54 (2), C. P. C. have not been followed viz., that the sale proclamation has not been published at some place on or adjacent to the property by beat of drum or by any other customary mode, a copy of the proclamation has not been affixed on a conspicuous part of the property nor in the village 'chavadi' and there is no evidence to show that there was publication of the sale proclamation on a conspicuous part of the court house or in the Office of the Collector.
In these circumstances, it is difficult to hold that all these omissions constitute merely a material irregularity as contemplated in O. XXI R. 90 C. P. C. On the other hand, it is clear violation of the mandatory provisions and, therefore, as held by the lower courts it has to be concluded that the sale has been held without proclamation.
(5-A) Relying on a Full Bench decision in Satyanarayanamurthy v. Bhavanarayana, 1957 Andh LT 241 : ((S) AIR 1957 Andh-Pra 185 (FB) the learned counsel for the appellant has urged that even so, the matter came within the purview of O. XXI R. 90 C. P. C. and was, therefore, hit by time. In that case, the question for consideration was whether the non-service of notice under O. XXI R. 66 (2) C. P. C. amounted to an irregularity in publication, conduct and execution of sale. The point was answered in affirmative but the ruling did not cover the question involved in this appeal and is, therefore, distinguishable on facts.
(6) The position has been considered in the case of Chinna Venkatanarayana v. Pannapati Elias, : AIR1954Mad1024 wherein it was held that a sale held without any publication whatever of the proclamation of sale is void and not merely. A previous decision of the Madras High Court in Vasudeva Kavu Patteri v. Mana Naika, was also explained.
(7) Reference has also been made by the learned counsel to the case of Arjanavarma v. China Appalaswamy, 1958 Andh LT 456 where it has been observed that :
'The principle deducible from the authorities is that breaches of the provisions of the Civil Procedure Code relating to execution against immovable properties commencing from their attachment down to their sale should be dealt with under O. 21 R. 90 and not otherwise and that the order of confirmation under O. 21 R. 92 should give final quiet us to all objections which could be raised under O. 21, R. 90.'
(8) In that case, the sale was held on a date other than the notified date without an order of adjournment and without a further sale proclamation. It was observed that it amounted to an irregularity. Even that case is distinguishable on facts accused the main allegation in the said case was in respect of the irregularities found in publishing and conducting the sale.
(9) In the instant case, as mentioned above, the facts reveal that there was no publication at all. Therefore, it amounted to the conduct of sale without publications as in the case of : AIR1954Mad1024 . The same view has been taken in the case of Venkateswara Ettu Naciker v. Ayyammal. : AIR1950Mad367 , viz., that a sale held without a proclamation as required under O. XXI R. 66, C. P. C. is void.
(10) I am, therefore, of the opinion that the findings of the lower Courts holding that Art. 181, of the Indian Limitation Act is applicable do not call for interference. The appeal (C. M. S. A. No. 62/1959) is accordingly dismissed with costs.
(11) This revision petition (C. R. P. 780 of 1959) is also dismissed but there will be no order as to costs.
(12) Appeal and petition dismissed.