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Venkateswara Ettu Naicker Vs. Ayyammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.A.O. No. 80 of 1947
Judge
Reported inAIR1950Mad367
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 21, Rules 54(2), 66, 67 and 90; Limitation Act, 1908 - Schedule - Articles 166 and 181
AppellantVenkateswara Ettu Naicker
RespondentAyyammal and ors.
Appellant AdvocateV. Ramaswami Iyer ; and R.M. Halasyam, Advs.
Respondent AdvocateT.K. Subramania Pillai and ; M. Natesan, Advs.
DispositionAppeal allowed
Cases ReferredJayarama Aiyar v. Vridhagiri Aiyar
Excerpt:
civil - validity - sections 100 and 101 and order 21 rules 54 (2), 66, 67 and 90 of code of civil procedure, 1908 - mortgaged property sold in auction - validity of auction sale challenged - proclamation on part of court mandatory for sale of property in auction - mandatory condition of proclamation not complied with - auction sale not valid. - - it can not be said that the total failure to make the proclamation under order 21, rule 66 is a mere irregularity in the publication or conduct of the sale......an application under section 47 and order 21, rule 90, civil p. c., for setting aside the sale held on 15th september 1943. the grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2) that there was no publication of the sale proclamation in the village as required by order 21, rule 67, civil p. c., and (3) that the properties were grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low upset price fixed for the properties and that as a result of the undervaluation and fraud the petitioner has sustained substantial injury, in that the properties worth several thousands have been sold for an inadequate and low.....
Judgment:

Krishnaswami Nayudu, J.

1. This is an appeal against the order of the Subordinate Judge of Tuticorin in C. M. A. No. 8 of 1945 allowing the appeal against the order of the District Munsif of Koilpatti in E. A. No. 233 of 1944 in O. S. No. 186 of 1939. The appellant is defendant 2, defendant 1 being the father. In execution of a mortgage decree in O. S. no. 186 of 1939 the properties of defendants 1 and 2 were brought for sale. Sale was held on 15th September 1943, respondent 1 here being the auction purchaser. The sale was confirmed on 18th October 1943. On 24th February 1944 the appellantfiled an application under Section 47 and Order 21, Rule 90, Civil P. C., for setting aside the sale held on 15th September 1943. The grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2) that there was no publication of the sale proclamation in the village as required by Order 21, Rule 67, Civil P. C., and (3) that the properties were grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low upset price fixed for the properties and that as a result of the undervaluation and fraud the petitioner has sustained substantial injury, in that the properties worth several thousands have been sold for an inadequate and low price of Rs. 269. The learned District Munsif who heard the application held that the sale was vitiated by fraud and irregularity, that there was no proclamation of the sale in the village and that the properties were grossly under-valued and therefore allowed the application and set aside the sale. On appeal the learned Subordinate Judge remanded the application for finding on certain matters. That order of remand was taken up in appeal to this Court in C. M. A. No. 694 of 1945 and Chandra-sekhara Aiyar J. directed a further remand to the Subordinate Judge for a finding as to whether there was a proper proclamation or not and on the question of absence of notice and undervaluation. The learned Subordinate Judge did not take any further evidence, but on the material on record proceeded to record findings on the three points referred to him. The learned Subordinate Judge found that even though notice was not personally served upon the appellant, he must have been kept informed of the proceedings by his father who is defendant 1 in the case. As regards proclamation he held that there was no due proclamation. Regarding under-valuation he was of opinion that the valuation fixed by the Court was not grossly inadequate and observed that it followed from the findings that the appellant has not suffered substantial injury on account of the irregularity in the matter of publication. He also held that the petition was barred by limitation. The appeal against the order setting aside the sale was allowed. This C. M. S. A. is against the said order.

2. Mr. Ramaswami Iyer, counsel for the appellant mainly contended that in view of the findings of both the Courts that there was no proclamation, the sale held in such circumstances is void and is illegal and this is not a case where in the publication and conduct of the sale there were material irregularities on which an application under Order 21, Rule 90 could be made. He argued that the application was under Section 47 and the making of the proclamation being prior to the sale, the application must be deemed to be one under Section 47 and not under Order 21, Rule 90, Civil P. C. There are concurrent findings of fact of both the learned District Munsif and the Subordinate Judge that there was no proclamation of sale. The learned District Munsil finds that there has been no publication of sale proclamation as required by Order 21, Rule 67 read with Rule 54 (2), while the Subordinate Judge holds that after examining the evidence that there has been no due proclamation. In the affidavit of the process-server who is alleged to have made the proclamation, EX. D 8, it is stated as follows :

'On 18th July 1943, I proclaimed by beat of tom tom the particulars of the sale by the Court of the properties mentioned in the proclamation of sale at the village of Ayya Kottayur where the property is situated and tied one of the two copies of the proclamation and raised it on a pole fixed in the garden No. 254 being Lot No. 1 of the property, paid Rs. 0-8-0 (eight annas) to the man who beat the drum, took his signature and took the signature of the people resident in the place at the end. On 29th July 1943 the other copy was affixed to the Court notice board and the signature of the process-server was obtained.'

The process-server was examined as R. W. 2 and he deposed that he caused proclamation by tom tom by totti Suppan Pagadai and the proclamation was attested by three persons Chinnaswami Nadar, M. A. N. Kamal Patcha and S. V. Chinnaswami Nadan. The totti who is admitted to be alive was not examined, nor any of the three attesters, and the evidence of R. W. 2, the process-server, has not been accepted by both the lower Courts, and the learned Subordinate Judge observes that :

'The totti who is alleged to have beaten the tomtom is a fictitious person and the decree-holder made a farce of an attempt to summon him once or twice, but he made no real attempt to get at him and examine him in Court, and that the appellant had not examined any of the attesters to the attakshi to the sale proclamation.'

In the end he concludes that there has been no flue proclamation of sale in the village. I am not inclined to disagree with these findings of fact by both the Courts that there has been no proclamation. But it is contended by Mr. Subramania Pillai that the learned Subordinate Judge only says that there has been no due proclamation. Apparently what he means is that there has been no proclamation in accordance with law. Under Order 21, Rule 66, Civil P. C., when any property is to be sold by public auction, the Court shall cause proclamation to be made in the language of such Court, and under Rule 67 the proclamation shall be made and published as nearly as possible in the manner prescribed by Rule 64 (2). Rule 54 (2) relates to attachment of properties and it directs that the order shall be proclaimed at some place on or adjacent to suchproperty by beat of drum or other customary mode. The mode by which the process-server, R. W. 2, is alleged to have made the proclamation has not been accepted by the Courts, and that being the only mode mentioned it is not brought to the notice of the Court that it was proclaimed by any other mode. If in fact it has been found that there has not been this publication by the mode prescribed by Rule 54 (2) and as alleged to have been made by R. W. 2, the effect is that there has been no proclamation which is mandatory under Rule 66 of Order 21.

3. It has, therefore, to be considered whether a sale held without a proclamation as required under Order 21, Rule 66 could be said to be valid and not void. There is the Bench decision of this Court in Jayarama, Iyer v. Vridhagiri Aiyar, 44 Mad. 35 : A. I. R. 1921 Mad. 583, where it was held that :

'Where a proclamation of sale of lands in execution of a decree as framed by the Court, was not published in the village where the lands were situate but the process-server intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation, a sale held at the place and by the official fixed by the proclamation is illegal and a nullity and not merely 'irregular' within the meaning of Order 21, Rule 90, Civil P. C.'

There is no difficulty in applying the proposition laid down in this case to the facts that arise in the present appeal, as there has been no proclamation at all in the village.

4. Mr. Subramania Pillai relied on a decision in Subbanna v. Satyanarayana Murthi : AIR1943Mad789 , where it was held that a sale without fresh proclamation was not illegal or invalid and could be set aside only if substantial loss is proved since it is only an irregularity. In that case, in execution of a decree the sale of properties was fixed on 31st March 1941. On that day the judgment-debtors had the sale adjourned to 30th June and waived fresh proclamation. Meanwhile the original decree-holder died and steps had to be taken to bring the legal representative on record. The sale was adjourned to 7th July and again to 6th August when the sale was held. There was no fresh proclamation of sale. The case in Jayarama Iyer v. Vridhagiri Iyer, 44 Mad. 35 : A. I. R. 1921 Mad. 583, was distinguished by the learned Judges in that case and the following observation appears to be material:

'If there was a proper proclamation to start with and 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 here there was no proper proclamation at all, and in that case there was a waiver of fresh proclamation at one stage and again it was adjourned and, in the meantime, the decree, holder died and the legal representatives was brought on record and for the adjourned sale there was no fresh proclamation. To similar effect is the decision cited on behalf of the respondent, viz., Nripathi Nath v. Jatindra Kumar : AIR1926Cal577 . There is one distinction between the proclamation that has to be made under Rule 66 and a fresh proclamation under Rule 69 of Order 21. With reference to the proclamation that is to be made under Rule 66 the Court shall cause the proclamation to be made, whereas under Rule 69 (2) if the judgment-debtor consents to waive it, there could be a sale without a fresh proclamation. No such latitude is given under Rule 66. Even the consent by judgment-debtor could not waive a proclamation provided for under Rule 66 which is obligatory. As pointed out by Seshagiri Aiyar J. in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : A.I.R. 1921 Mad. 583 it is no doubt not easy to draw the line between irregularity and illegality, but where a substantial provision of law has been violated as in this case Order 21, Rule 66 the sale should be regarded as having been illegally conducted. The object of Order 21, Rule 66 is to afford a security for the fairness of public sales, that it has been properly published and that it would attract purchasers. But if the specific provision as to proclamation is violated, there could be no doubt that the sale cannot be allowed to stand. It can not be said that the total failure to make the proclamation under Order 21, Rule 66 is a mere irregularity in the publication or conduct of the sale. In view of the decision in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : A. I. R. 1921 Mad. 683 and on the findings of fact of both the Courts, the sale held on 15th September 1943 must be held to be illegal and void and cannot be allowed to stand and is, therefore, liable to be set aside.

5. A further point was argued on the question of limitation. It is conceded that if it is an application under Order 21, Rule 90 the provisions of Article 166, Limitation Act would apply i. E., an application should be filed within 30 days from the date of sale. But in the view that I am now taking that the sale itself is illegal and void, Article 166 would have no application and residuary Article 181 would be the provision that would be applicable to an application of this nature, i.e., three years from the time when the right to apply accrues. If Article 181 is applied, the application is within time.

6. It is also argued by learned counsel for the respondent that the sale if at all is set aside could be set aside only as regards the share of the applicant and not in respect of the share of defendant 1 who has not preferred an application for setting aside the sale. But since the sale itself has been held to be an illegality I do not think that any such distinction could be made and the sale in its entirety must be deemed to be void and is, therefore, set aside, This point as to the void nature of the sale does not appear to have been argued in the lower Court and has been raised for the first time by Mr, Ramaswami Aiyar. But since it is a point of law I have allowed him to argus it. In the circumstances of the case, the appeal is allowed and the order of the trial Court is restored, but there will be no order as to costs in this appeal and in the lower appellate Court. Leave refused.


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