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T.R.M. Arunachelam Chetty Vs. Kulandasami Tevar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1895)5MLJ70
AppellantT.R.M. Arunachelam Chetty
RespondentKulandasami Tevar and anr.
Cases Referred and Kishore v. Mala Chand I. L. R.
Excerpt:
.....that the proclaiming of the sale where appellant's land is situated and the fixing up of a copy of the sale-proclamation near it did not precede the affixing of a copy in the court-house as contemplated by section 289 and that the sale took place in less than thirty days from the date of publication on or near the land. if it had been the intention of the legislature to make a distinction between illegality and irregularity and to dispense with proof of actual loss in the one case and not in the other, they would have expressed that intention clearly in apt language. 289 but the rule contained in section 274 and section 289. having regard to the fact that the publication of the sale near or on the estate intended to be sold is not mentioned in section 290, it is clearly not part..........sale and renders it a nullity. they, also allege that by reason of such defect in conducting the sale, property worth rs. 70,000 was sold for rs.14,000 only. with reference to the actual value of the land sold, the subordinate judge has taken no evidence nor has he recorded any finding. he has adopted the view that the sale is a nullity and come to the conclusion that no proof of substantial injury is needed. so far as the 1st defendant is concerned, his application for postponing the sale from the 19th jaunary to which it was fixed to the 20th january when it really took place was held to be a waiver so far as he is concerned, of all objections to the sale and it was concluded that the sale must be upheld so far as his share is concerned. accordingly the subordinate judge declined to.....
Judgment:
ORDER

Muthusami Aiyar, J.

1. This was an application to set aside the court-sale held in Original Suit No. 33 of 1887 on the file of the Subor-'dinate Court of Madura (East). In that suit one Subramanya Servai obtained a decree against appellant and since assigned it to 2nd respondent and another.

2. The first objection taken to the sale is that in publishing it, the provisions of Section 289 and Section 290 of the Code of Civil Procedure, have not been complied with.

3. The court-sale was originally fixed for the 19th January 1891, but on 1st respondent's application, it was adjourned to the 20th idem on which date it actually took place. It is provided by Section 289 of the Code that the sale should be proclaimed in the manner provided in Section 274, that is to say, 'at some place on or adjacent to the property to be sold by beat of drum or other customary mode and a copy of the proclamation should be fixed up in a conspicuous part of the property.' Another direction contained in Section 289 is that a copy of the sale-proclamation shall then be affixed on the court-house, &c.; Section 290 directs that no sale of immoveable property shall take place without the consent in writing of the judgment-debtor until after the expiration of at least thirty days from the day on which the copy of the sale-proclamation was fixed in the court-house.

4. Respondents' case in the Court below was that the sale they impugn took place in less than thirty days both from the date of affixing a copy of the proclamation on the property sold and from the date on which another copy was affixed in the court-house. The last mentioned date was the 19th December 1890 and as there was clearly an interval of thirty days between that date and the 20th January 1891, it is clear that the sale was not contrary to the provisions of Section 290.

5. But the Subordinate Judge has found and it is admitted at the hearing by appellant's pleader, that the proclaiming of the sale where appellant's land is situated and the fixing up of a copy of the sale-proclamation near it did not precede the affixing of a copy in the court-house as contemplated by Section 289 and that the sale took place in less than thirty days from the date of publication on or near the land. To this extent, it must be conceded that there was an irregularity in publishing the sale.

6. On this point respondent's contention is that this defect is not a mere irregularity but an infringement of a statutary direction which altogether vitiates the sale and renders it a nullity. They, also allege that by reason of such defect in conducting the sale, property worth Rs. 70,000 was sold for Rs.14,000 only. With reference to the actual value of the land sold, the Subordinate Judge has taken no evidence nor has he recorded any finding. He has adopted the view that the sale is a nullity and come to the conclusion that no proof of substantial injury is needed. So far as the 1st defendant is concerned, his application for postponing the sale from the 19th Jaunary to which it was fixed to the 20th January when it really took place was held to be a waiver so far as he is concerned, of all objections to the sale and it was concluded that the sale must be upheld so far as his share is concerned. Accordingly the Subordinate Judge declined to set aside the sale as regards the 1st defendant's 1/3 share and set it aside so far as it relates to 2nd and 3rd defendants' share. It is urged on behalf of the appellant (1) that the Subordinate Judge is in error in treating the sale as null and void and (2) that as publication on the property is not referred to in Section 290 which mentions the affixing of a copy of the proclamation in the court-house, there is no valid ground for supposing that the sale was even irregular.

7. As to the 1st objection, I am unable to accept the opinion of the Subordinate Judge that the sale is null and void. The application to set aside the sale is made under Section 311 of the Code of Civil Procedure and there is no other section in the Code under which a court-sale can be set aside on petition. Section 311 permits an application to set aside the sale on the ground of material irregularity and illegality. This supports the view that the legislature did not probably intend to differentiate between infringements of different rules of procedure relating to sales in execution of immoveable property, but intended to treat them all alike and require proof of substantial injury notwithstanding any irregularity before the sale is set aside.

8. The term 'irregularity' means in ordinary parlance the state of being irregular, or not being in conformity to some recognised rule and in Section 311, it can only mean not being in conformity to some one of the rules provided by the Code of Civil Procedure to regulate execution sales. If it had been the intention of the legislature to make a distinction between illegality and irregularity and to dispense with proof of actual loss in the one case and not in the other, they would have expressed that intention clearly in apt language. In one sense, whatever is irregular is also illegal, as irregularity connotes want of conformity to some recognised rule of procedure and it is in this sense, I think, that the term is used in the Code. There is warrant for this view in Section 584 of the Code which postulates as a ground of Second Appeal a substantial error or a defect in the procedure, as prescribed by this code or any other law, which may possibly have produced error or defect in the decision of the case on the merits. I think that it is the violation of an established rule of procedure regarding sales that constitutes an irregularity and it is the consequential loss that constitutes it a material irregularity or ground for cancelling the sale.

9. In support of the opinion of the Subordinate Judge reliance is placed on three decisions of the Allahabad High Court reported at Bakhshi Nand Kishore v. Malalk Chund I. L. R. (1885) A. 289 Sant Lal v. Umraouh-Nissa (1889) I. L. E. 12 A. 96 and Ganga Prasad v. Jag Lal Rai I. L. R. (1889) A. 333 In the first two cases a distinction was drawn between cases in which the irregularity consists in the infringement of a rule either prohibiting the sale by the Court or negativing the power to sell of the officer conducting the sale, but there was a difference of opinion as to whether the distinction rests on a sound basis among the judges who decided the case in Ganga Prasad v. Jag Lal Rai I. L. R. (1889) A. 333 On the other hand, I may refer to the decisions in Mohunt Megh Lall Poore v. Sahib Pershad Madi I. L. R. (1881) C. 34 Bonomali Mozvmdar v. Woomesh Chunder Bundapadhya (1881) I. L. E. 70. 730 Bandi All v. Madhub Chunder Nag I. L. R. (1882) C. 932 and Arunachellam v. Arunachellam (1888) I. L. E. 12 M. 25 where no such distinction is drawn. However this may be, the rule of procedure violated in the present case is not the rule contained in Section 290 as in Bakhshi N and Kishore v. Mala Chand I. L. R. (1885) A. 289 but the rule contained in Section 274 and Section 289. Having regard to the fact that the publication of the sale near or on the estate intended to be sold is not mentioned in Section 290, it is clearly not part of a rule of prohibition of the sale before 30 days.

10. The second objection that the infringement of Section 289, so far as it relates to publication on or near the property sold is no irregularity at all does not seem to me sound. That section prescribes the rule of procedure to be followed in publishing intended sales in execution, and it is designed to invite bidders from among those living in the neighbourhood of the property who would naturally desire to purchase them. The non-observance of-this rule may possibly tend to reduce the number of bidders and'-indirectly affect the price which the property may fetch at a public auction.

11. I set aside the order of the Subordinate Judge and call upon him to take evidence and return a finding on the question whether, by reason of the property having been sold in less than 30 days from the date on which the intended sale was proclaimed where the property is situated, any and what substantial injury has resulted.

12. In compliance with the above order, the Subordinate Judge returned a finding, answering the question put to him in the negative.

13. On return of the finding, there were some objections raised against it. His Lordship considered the objections raised and being unable to differ from the Sub-judge's finding accepted it and reversing his order confirmed the sale to the extent of the respondents' share.


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