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Bolla Subbanna Vs. Balanagu Satyanarayanamurti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad789; (1943)2MLJ295
AppellantBolla Subbanna
RespondentBalanagu Satyanarayanamurti and ors.
Cases ReferredJayarama Aiyar v. Vridhagiri Aiyar
Excerpt:
- - if the sale is only vitiated by a material irregularity, then the appellant is bound to fail as the lower court has found that he did not sustain any loss whatever. strong reliance was placed on the decision of this court in jayarama aiyar v. it would have been very-much better if a fresh sale proclamation had been issued, but it is far from saying that there was no sale proclamation at all or that the proclamation fixed a different place from that at which the sale was actually held......one upon a first mortgage and the puisne mortgagee was also made a party to the suit. at the court sale held on the 6th august, 1941, the properties in question were knocked down in favour of respondents 1 to 3. the appellant filed the application out of which this appeal arises on the 30th august, 1941, under order 21, rule 90 of the civil procedure code praying that the sale of the 6th august, 1941, may be set aside. substantial loss was urged in the court below and this plea, was found against. mr. suryanarayana, the earned counsel for the appellant, says that on the state of the evidence he cannot challenge the correctness of the finding of the lower court on this point. it is urged before us that there was an illegality in the conduct of the sale and that therefore even without.....
Judgment:

Somayya, J.

1. This is an appeal filed by the first judgment-debtor against the order of the Subordinate Judge of Narasapur refusing to set aside a sale held in execution of the decree of that Court in O.S. No. 43 of 1937. The decree was one upon a first mortgage and the puisne mortgagee was also made a party to the suit. At the Court sale held on the 6th August, 1941, the properties in question were knocked down in favour of respondents 1 to 3. The appellant filed the application out of which this appeal arises on the 30th August, 1941, under Order 21, Rule 90 of the Civil Procedure Code praying that the sale of the 6th August, 1941, may be set aside. Substantial loss was urged in the Court below and this plea, was found against. Mr. Suryanarayana, the earned Counsel for the appellant, says that on the state of the evidence he cannot challenge the correctness of the finding of the lower Court on this point. It is urged before us that there was an illegality in the conduct of the sale and that therefore even without proof of substantial loss the sale ought to be set aside. The allegation of illegality is based upon the following facts. The original decree-holder filed the execution petition in the course of which the suit sale was held on the 31st August, 1940. Sale notices were issued to the judgment-debtors and the sale was, after notices were served, fixed for 31st March, 1941. On that date the judgment-debtors appeared in Court and applied for an adjournment of the sale for three months and Waived fresh proclamation. The Court adjourned the sale thereupon;to the 30th June, 1941 and noted that no fresh proclamation was necessary: Meanwhile the original decree-holder died and E.A. No. 295 of 1941 was filed by his son to come on record and to continue the execution proceeding. The judgment-debtors appeared and opposed the application. Thereupon the application to bring the son of the decree-holder on record was adjourned from time to time and ultimately he was ordered to be brought on record by an order dated 6th August, 1941. On the 30th of June, 1941, to which date the sale had stood adjourned the Court suo motu adjourned the sale to 7th July, 1941, and on the 7th July, 1941, the sale was adjourned to 6th August, 1941. There was admittedly no fresh sale proclamation and the sale was held on the 6th. It was on that date that the decree-holder's son was brought on record. Two grounds rendering the sale a nullity are urged before us. One is that under Order 21, Rule 69, Clause (2) as framed by the Madras High Court, a sale cannot be postponed for more than thirty days in the aggregate. The second is that the sale was held without a fresh proclamation on the 6th August, 1941.

2. Taking the first ground it may be that it is a material irregularity to adjourn the sale for more than thirty days in the aggregate. In a case where there was a sale after a series of short adjournments which in the aggregate amounted to more than seven days it was held by the Calcutta High Court that a sale held after such adjournments was vitiated by a material irregularity. It was said that a fresh proclamation would in such a case be necessary--vide Jamini Mohan Mundy v. Chandra Kumar Roy (1917) 6 L.W. 769. In Ramiah v. Atmanatha : AIR1929Mad624 , Wallace, J., had to consider a case where there was a proclamation for sale and there being no bidders, the sale was adjourned from time to time and more than seven days elapsed in the aggregate. The learned Judge held that it was a mere irregularity and that the sale held was not an illegal one. If the sale is only vitiated by a material irregularity, then the appellant is bound to fail as the lower Court has found that he did not sustain any loss whatever. We are unable to agree with the learned advocate for the appellant that the sale held after adjournments amounting in the aggregate to more than thirty days is a nullity,

3. Then as regards want of fresh sale proclamation, it is admitted that the sale held on the 6th August, 1941, was without a fresh proclamation. But the question is whether that renders the sale illegal so as to entitle the judgment-debtor to ask that it should be set aside even though a proper price was fetched. Strong reliance was placed on the decision of this Court in Jayarama Aiyar v. Vridhagiri Aiyar : AIR1921Mad583 . Before dealing with this case we should point out that the Calcutta High Court has uniformly held that where a sale is held without a fresh proclamation even in cases where it is necessary, there is only a material irregularity and it does not render the sale held without a fresh proclamation an illegal one or a nullity. In the case before Wallace, J., already referred to, it is clear that at the sale held after a proper proclamation of sale, there was only one bid. The sale was thereupon adjourned from time to time and in the aggregate the period of adjournment was more than seven days. There was obviously no fresh proclamation, because if there was a fresh proclamation the sale would not be open to any objection because it would be one held under the new proclamation. Though this fact is not prominently mentioned, it is clear that there was no fresh proclamation and the learned Judge held that the sale would only be affected by material irregularity and could not be set aside without proof of substantial loss. If there was a proper proclamation to start with and the only ground of attack is that the total period of adjournments exceeded the thirty days fixed in the Madras rule as amended in 1936 and that the sale was held without a fresh proclamation, it appears to us that the sale cannot be held to be an illegal one or a nullity and the sale will be set aside only if substantial loss is proved. But when there is no loss and when a proper price was fetched at the sale, there is no reason why the sale should be set aside. The decision relied upon by the learned advocate for the appellant does not, in our opinion, help him. There the sale was advertised to be held at a particular place and by a particular officer. The sale was actually held at a different place by a different officer. The learned Judges held that the prospective bidders were misled by the sale being held at a place different from that which was mentioned in the sale proclamation. Dealing with the distinction between irregularity and illegality Oldfield, J., says this:

It would appear, in fact, that the distinction is one of degree; and that an irregularity of so serious a nature as to render impossible the publicity which affords one main security for the fairness of public sales must be deemed to be an illegality.' Seshagiri Aiyar, J. said this:

If a sale is held at a place to which the proclamation at the village makes no reference, and per contra invites bidders to go to another place, I am prepared to hold that there was no publication leading up to the sale.

4. In the present case there was a proper proolamation for sale for the 31st March, 1941. At the instance of the judgment-debtors and on their waiving fresh proclamation it was adjourned to 30th June, 1941. Then owing to the death of the decree-holder, his son had to come on the record in order to continue the execution proceeding. It would have been very-much better if a fresh sale proclamation had been issued, but it is far from saying that there was no sale proclamation at all or that the proclamation fixed a different place from that at which the sale was actually held. No one was misled as in the case before the learned Judges and we think that that decision does not support the appellant. As pointed out by Oldfield, J., the question is one of degree. The earned Counsel for the appellant urges that if the view taken by the lower appellate Court is correct, a Court might postpone a sale again and again each time not exceeding thirty days and that a sale might be actually held years after the original sale proclamation. In such a case as pointed out by the learned Judges in the case just cited it might be held that the sale was in reality not one under the original proclamation, that it was held without any proclamation at all and that therefore the sale was vitiated by an illegality. In the present case, however, if the sale had been held on the 30th July, it would be within the thirty days rule fixed by Order 21, Rule 69, Clause (2) as amended by the Madras High Court. The sale was actually held on the 6th August, a week later and we are unable to hold that in this case the sale was vitiated by an illegality. We may, however, point out that if the sale is continued from day to day, it is not a case of an adjourned sale at all and in such a case the sale might be continued for any length of time if the circumstances of the case warrant it.

5. In the result the appeal is dismissed with costs.


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