T.C. Raghavan, J.
1. The legal representatives of the decree-holder are the appellants and the 4th defendant-Judgment-debtor the respondent. The second appeals arise in execution.
2. Five Items of properties were directed to be sold under a mortgage decree; and items 3 to 5, belonging to the 4th defendant, were directed to be sold as the first lot. Notice of draft proclamation was served on the 4th defendant and the first lot was proclaimed for sate. That lot was actually sold on 4th April, and the sale was confirmed on 4th June, 1953. More than two years thereafter, the decree-holder filed an application for amending the plaint, the decree, the sale proclamation, etc. Notice was issued in that application and on receipt of noticethe 4th defendant filed two applications which have given rise to the second appeals. One of the applications was to set aside the sale and the other was to condone the delay in filing that application. The original court dismissed both the applications; but on appeal the learned Subordinate Judge reversed the orders and allowed the applications.
3. Both the lower courts have concurrently held that the 4th defendant was served with notice regarding draft proclamation and that finding cannot be seriously canvassed in second appeal. The next question is whether there was proper proclamation as contemplated by the provisions of the Civil Procedure Code. The objection raised by the 4th defendant was that the proclamation was not published by affixture on any of the items in the first lot. On this question the primary court has held that the amin affixed the proclamation on the properties proclaimed for sale. The learned Subordinate Judge has disbelieved the evidence on this point and has held that there was no proper affixture of the proclamation in any of the items included in the decree.
4. The amin who is alleged to have affixed the proclamation is R. W. 2. The properties are shown in the proclamation as lying in the Panangad amsom, whereas they are really in the Padihare Vemballoor amsom and desom. It is this mistake that was sought by the decreeholder to be rectified by amendment after two years of the confirmation of the sale. The amin says that he went to Padinhare Vemballoor amsom, because the properties were there. In the next breath he says that he went to Panangad amsom and the properties were shown to him. One of the witnesses to the affixture is a son of the 1st defendant. According to the 4th defendant, the 1st defendant was behind the execution proceedings and he was interested in seeing that the properties were brought to sale. This suggestion has some force, because in the notice of draft proclamation another son of the 1st defendant figures as a witness.
Besides that, as I have pointed out, the evidence of theamin is also not above board to establish that the proclamation was affixed on the properties. If the proclamation showed that the properties lay in Panangad amsom,I fall to see why and how the amin went to PadinhareVemballoor amsom, unless the proclamation was amended.This enthusiasm of the amin, coupled with the presenceof the son of the 1st defendant as witness to the affixture, is suspicious; and the learned Subordinate Judge wasright in placing no reliance on the evidence of the aminregarding the affiixture. In this connection, I may observethat the learned Munsif also appears to have evinced alittle undue enthusiasm in justifying the action of the amin.I may also observe that the strong language used by thelearned Munsif and his reference to the story of the obedient son (he means the story of Casablanca) in his Judgment are a little out of taste. Ultimately, I accept thefinding of the learned Subordinate Judge that the proclamation was not affixed in any part of the properties proclaimed for sale.
5. The further question for consideration is regarding the effect of such failure. The learned advocate of the appellants brings to my notice two or three decisions. One of them is the Division Bench ruling of this Court in Philip v. Thomas, 1957 Ker LJ 685 : (AIR 1958 Ker 305). It has been laid down in that case that the failure to comply with the provisions ofOrder XXI, Rule 67 (2) of the Code of Civil Procedure will at the most amount only to a material irregularity, which could be relied upon for filing an application under Order XXI Rule 90 and the sale would not be illegal or void. It is evident that this decision cannot apply to the present case, because Rule 67 (2) deals with a discretion vested in the court to direct the publication of the proclamation in the official Gazette or in a local newspaper, and the failure to do so can only be an irregularity, which will only entitle the judgment-debtor to have the sale set aside under Order XXI, Rule 90. The next decision cited is that of the Travancore-Cochin High Court in Pakianathan Nadar v. Karthiyani Pillai, 1956 Ker LT 327 (TC). A perusal of that judgment reveals that there was no evidence in that case regarding the location of the properties sold or whether the place where the proclamation was affixed was or was not adjacent to the other properties. There was also no pleading on the question; and therefore the learned Judge held that the defect was only an omission to comply with the requirements it publishing and conducting the sale and that would not render the sale void. Thus, in that case also the defect was treated only as an irregularity.
6. The real question for decision is whether the failure to affix the proclamation in any part of the property proclaimed for sale is only a material irregularity or is something more than that, viz., an illegality. The Madras High Court held in Jayarama Aiyar v. Vridhagiri Aiyar, AIR 1921 Mad 583 that there was a distinction between an irregularity and an illegality and that was one of degree. Oldfield J. observed that an irregularity of so serious a nature as to render the publicity which afforded one main security for the fairness of public sales must be deemed to be an illegality. Seshagiri Ayyar J. pointed out in the same case that the Code itself gave some indication as to when a sale could be regarded as irregular and when illegal. I am also of the same opinion; and according to me, Order XXI, Rule 90 itself gives sufficient indication regarding the scope and ambit of that provision. Rule 90 deals with the setting aside of a sale 'on the ground of material irregularity or fraud in publishing or conducting it'. If the defect goes beyond the realm of 'material irregularity or fraud in publishing or conducting' the sale, then it is an illegality and in that case the sale is void. As observed by Seshagiri Ayyar J. where there is no publication or conduct of sale, it is a right inference to draw from Rule 90 that the sale should be regarded as illegal. In the case before me the finding of the learned Subordinate Judge, which I have accepted, is that there was no affixture of the proclamation on any of the items of properties proclaimed for sale; and that amounts to a complete absence of proclamation. Therefore, it is not a mere irregularity in the publication or conduct of the sale, but it is an illegality of there being no publication at all.
7. The aforesaid Madras Division Bench decision has been followed in other decisions as well -- vide Venkateswara Ettu Naicker v. Ayyammal, AIR 1950 Mad 367 and S.C. Venkatanarayana v. Pannapati Elias, AIR 1954 Mad 1024. But the learned advocate of the appellants draws my attention to two decisions of the Calcutta High Court. They are Jogendra Nath v. Nabi Newaj, AIR 1938 Cal 699 and Ashalatha Bose v. Manindra Nath Bose, AIR 1942 Cal. 275. In both these cases this aspect, namely, whether the defect was only a material irregularity or wasan illegality, was not considered. The teamed counsel again points out that these decisions have been approved and followed by the Division Bench of this Court in 1957 Ker LJ 685 : (AIR 1958 Ker 305). Of course, these decisions have been referred to approvingly by the learned Judges in that case. At the same time, they have referred to the Madras decision in Jayarama Aiyar's case as well and the learned Judges have not disapproved of that decision. Their Lordships 'have only distinguished that case, because the enquiry in the case before them related only to Order XXI, Rule 67(2). Thus, according to me, the approval of the Calcutta decisions by this Court does not indicate that there is no distinction between a material irregularity and an illegality; and even if the defect is the latter, the sale has still to be set aside under Order XXI, Rule 90. I am therefore of opinion that in the case of an illegality, the sale need not be set aside under Order XXI, Rule 90; but proceedings can be taken under Section 47 of the Coda of Civil Procedure, I am also of opinion that the complete absence of proclamation is an illegality and not a mere irregularity. In the aforesaid view, the application for setting aside the sale in the present cases does not fall under Order XXI, Rule 90, but falls within Section 47 of the Cods. If so, there is no bar of limitation either, since the application was filed within three years of the sale.
8. The learned advocate of the appellants contends that Section 5 of the Limitation' Act does not apply to an application under Order XXI, Rule 90 of the Code. There may be some force in this contention. But that question does not arise in these cases, because the application herein is only one under Section 47 of the Code and not under Order XXI, Rule 90. I do not therefore propose to give any ruling on the applicability of Section 5 of the Limitation Act to applications under Order XXI, Rule 90 of the Code.
9. The second appeals are consequently dismissed. In S.A. No. 197 of 1959 the appellants will pay the costs of the respondent and in the other second appeal the parties will bear their respective costs.