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Fasahat Ali and ors. Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 640 of 1957
Judge
Reported inAIR1957All449
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90
AppellantFasahat Ali and ors.
RespondentBoard of Revenue and ors.
Appellant AdvocateRajaram Agarwal, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
civil - voidable sale - order 21 rule 90 of code of civil procedure, 1908 - place for holding sale mentioned in sale proclamation changed - subsequently fresh proclamation should be issued - omission to issue fresh proclamation is an irregularity - held, the sale voidable. - .....in lucknow was ordered to be sold in proceedings under the u. p. encumbered estates act. a sale proclamation was duly issued in which it was stated that the sale would take place on the 31st march, 1949, at 2 p.m. in the raushan-ud-daula kutchery. the sale did not in fact take place on that date but was postponed to the 8th april 1949. on the 5th april, that is three days before the sale, the deputy commissioner directed that the sale should be held at the site of the building. no fresh proclamation of sale was issued. on the 8th april the sale was held and the building was sold for rs. 48,500. an objection to the sale was dismissed by the deputy commissioner by an order dated the 18th april, 1949, and an appeal by the petitioners against this order was dismissed by the.....
Judgment:

Mootham, C.J.

1. This is a petition under Article 286 of the Constitution in which the petitioners seek to havequashed an order of the Board of Revenue dated the 29th November, 1956. The facts necessary for the decision of this petition can be stated very shortly.

2. A building in Lucknow was ordered to be sold in proceedings under the U. P. Encumbered Estates Act. A sale proclamation was duly issued In which it was stated that the sale would take place on the 31st March, 1949, at 2 p.m. in the Raushan-ud-Daula Kutchery. The sale did not in fact take place on that date but was postponed to the 8th April 1949. On the 5th April, that is three days before the sale, the Deputy Commissioner directed that the sale should be held at the site of the building. No fresh proclamation of sale was issued. On the 8th April the sale was held and the building was sold for Rs. 48,500.

An objection to the sale was dismissed by the Deputy Commissioner by an order dated the 18th April, 1949, and an appeal by the petitioners against this order was dismissed by the Additional Commissioner, Lucknow, on the 10th January, 1956. An application for the revision of the latter order was then filed by the petitioners before the Board of Revenue and was dismissed by an order dated the 29th November, 1956, the validity of which is now being challenged.

3. The Board of Revenue held that there had been a material irregularity in conducting the sale within the meaning of Order 21, Rule 90 of the Code of Civil Procedure, but as it was of opinion that the petitioners had not as a consequence thereof sustained substantial injury the sale could not be set aside.

4. The sole point which has been taken before us on behalf of the petitioners is that the venue of sale having been changed the sale was void, and in support of his submission learned counsel relied on Fakira Mahadji v. Sangidas Sadaram, AIR 1944 Nag 199 (A).

5. Now we think that there can be no doubt that the place of sale having been changed a fresh sale proclamation ought to have been issued, but this Court has held the omission to issue such a proclamation is an irregularity which rendered the sale voidable. In Rup Kishore v. Collector of Etah : AIR1929All948 a proclamation was issued naming the 27th February as the date of sale; the sale was in fact held on the 28th February and the Court held this to be an irregularity. So also in Harindra Nath v. Bhola Nath : AIR1937All407 the Court held that the omission to specify the time and place of sale by means of a sale proclamation was a material Irregularity. In an earlier case, Navin Chandra v. Ram Devi : AIR1933All161 , a higher bid was accepted by the Court after the sale had been concluded and this was held to amount to a private sale which rendered the sale voidable on proof of substantial injury. In Fakira Mahadji v. Sangidas Sadaram (A), the case relied upon by the petitioners, a different view was taken, the absence of a proclamation stating the time and place of sale being held to render the sale wholly void. With due respect however we see no reason that the view taken by this Court, which we are of course bound to follow, is erroneous. We must therefore reject the submission made.

6. The petition accordingly fails and is dismissed.


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