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Vasudeva Kavu Patteri Vs. Mani Naicka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal No. 234 of 1948
Judge
Reported in1954CriLJ1239
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 90 and 92
AppellantVasudeva Kavu Patteri
RespondentMani Naicka and ors.
Appellant AdvocateK.V. Venkatasubramania Iyar, ;C.K. Viswanatha Iyer and ;K. Vittal Rao, Advs.
Respondent AdvocateK.Y. Adiga, ;M.K. Nambiar, ;T. Krishna Rao, ;K.P. Adiga and ;M. Koteswara Rao, Advs.
DispositionAppeal dismissed
Cases ReferredVenkataramana Ayyar v. Natesa Pillai
Excerpt:
code of civil procedure (act v of 1908), order xxi, rules 90, 92--court sale held on date different from that notified--material irregularity--sale not void--remedy only under order xxi, rule 90--independent action not maintainable;an execution sale was fixed by sale proclamation for 24th january 1942 as the date on which the sale was to be held. that day, being a penultimate saturday, was a court holiday and the sale was held on monday, 26th january 1942, the next working day. in a suit filed to set aside the sale held on 26th january 1942, as being void, it was contended that the sale was a nullity and no title was acquired under the sale by the purchasers.;held: when a sale was held on a date different from that notified, without an order of adjournment and without a further sale.....1. the plaintiff is the appellant. the facts so far as they are relevant for the purpose of this appeal are these : on 11-8-1933 one shivakava patteri, the father of the plaintiff, executed along with four others a promissory note for rs. 3000 in favour of the canara bank. for the balance due on this promissory note the bank filed o. s. no. 427 of 1934 on the file of the court of the district munsif of kasargod; obtained an 'ex parte' decree for its. 1869-4-10 on 7-9-1934; and realised a sum of rs. 350 in r. e. p. no. 1564 of 1934. the boobs of the bank show that on 30-7-1935 a sum of rs. 1637-13-6 being the balance due under the decree on that date was received from mana naicka, the first defendant in this suit, ex. d. 75. on the same day the bank assigned the decree to him. the first.....
Judgment:
1. The plaintiff is the appellant. The facts so far as they are relevant for the purpose of this appeal are these : On 11-8-1933 one Shivakava Patteri, the father of the plaintiff, executed along with four others a promissory note for Rs. 3000 in favour of the Canara Bank. For the balance due on this promissory note the Bank filed O. S. No. 427 of 1934 on the file of the Court of the District Munsif of Kasargod; obtained an 'ex parte' decree for its. 1869-4-10 on 7-9-1934; and realised a sum of Rs. 350 in R. E. P. No. 1564 of 1934. The boobs of the bank show that on 30-7-1935 a sum of Rs. 1637-13-6 being the balance due under the decree on that date was received from Mana Naicka, the first defendant in this suit, Ex. D. 75. On the same day the bank assigned the decree to him. The first defendant brought himself on record as the assignee decree-holder and after several unsuccessful attempts to realise the decree amount in R, E. P. Nos. 1410 of 1936, 584 of 1938, 1186 of 1938 and 172 of 1939 eventually brought the suit properties to sale in R. E. P. No. 401 of 1940 and they were purchased by defendants 2 to 4 in court auction 26-1-1942. An application filed on behalf of the plaintiff who was then a minor represented by his mother as his guardian to set aside the sales under Order 21, Rule 90, C. P. C., was dismissed as no security was furnished. The sales were duly confirmed and possession taken by the respective purchasers on 29-6-1942, 17-6-1942, and 23-7-1943. Defendants 5 to 7 are purchasers of some of the suit properties from defendants 2 to 4. Order 2-10-1945 the appellant filed O. S. No. 87 of 1945 on the file of the court of the Subordinate Judge, South Kanara, for a declaration that the sales held on 26-1-1942 were illegal and void on various grounds set out in the plaint and for recovery of possession of the properties with mesne profits. It was also alleged in the plaint that the father of the plaintiff had disappeared in 1935 and had not been heard of since, and must be presumed to be dead. The claim was contested by all the defendants. The Subordinate Judge of South Kanara who heard the suit held that the plaintiff had not established any grounds invalidating the sales and dismissed the suit with costs. The present appeal has been preferred against this decision.

2. On behalf of the appellant Mr. K.V. Venkatasubramania Iyer pressed two points: (i) Sivakavu Patteri the father of the plaintiff was only a surety for the other co-executants of the promissory note dated 11-8-1938 that the payment of Rs. 1637-13-6 to the bank on 30-7-1933 was really made by Sivakavu Patteri, but that he had the decree nominally assigned in the name of the first defendant as to enable him to recover the amounts from the other judgment debtors & that in breach of this arrangement, the first defendant fraudulently executed the decree against the properties of Sivakavu Patteri taking advantage of his disappearance; and that the purchases by defendants 2 to 4 were made in collusion with the first defendant. (2) The execution sale was. fixed for 24-1-1942; it was held not on that date but on 26-1-1942; there was no order adjourning the sale from 24-1-1942 to 26-1-1942; there was no further proclamation, and that the sale is therefore a nullity.

3. On the first question the burden is heavily on the plaintiff to establish that the payment of Rs. 1637-13-6 to the bank on 30-7-1935 was really made by his father; that the first defendant was only a benamidar for him; that the execution proceedings taken by the first defendant were fraudulent; and that the purchasers were parties to the fraud,

4. There is no reliable evidence that it was Sivakavu Patteri that paid the amount of Rs. 1637-15-6 to the bank. (After discussing the evidence, the judgment proceeds as under:) On a consideration of the materials placed before us, we agree with the Subordinate Judge that the plaintiff has failed to establish that the assignment of the decree in favour of the first defendant was benami for his father.

5. It is the second contention that the sale held on 26-1-1942 was a nullity that has been strongly pressed on us. The facts are that the sale proclamation fixed on 24-1-1942 as the date on which the sale was to be held. The day was a penultimate Saturday and therefore, a court holiday. The sale was accordingly held on Monday, 26-1-1942 being the next working day. It is common ground that no order was passed on 24-1-1942 adjourning the sale to 26-1-1942. It is argued for the appellant that as there was no such order, the sale held on 26-1-1942 was a nullity and no title was acquired under that sale by the purchasers. It cannot be doubted that if a sale is held on a date different from that on which it was notified, it would be at least a material irregularity and if that had resulted in substantial injury, the sale would be liable to be set aside if proceedings are taken under Order 21 Rule 90. But the plaintiff seeks to impeach the sale not in proceedings taken under Order 21 Rule 90 but in an independent action. The question is whether it is open to the plaintiff to maintain an action for setting aside the sale on the grounds now put forward. In --'Swaminatha v. Krishnaswami', AIR 1947 Mad 213(A), the facts were that a Bank obtained a decree against a Hindu father on a promissory note executed by him and in execution of the decree sold the joint family properties. The sons of the judgment-debtor filed a suit for a declaration that the sale was not binding on them, on the ground, 'inter alia' that there had been no attachment of the properties and that therefore the sale was a nullity. It was held that the failure to attach the properties was only an irregularity such as would give a right to move the court under Order 21 Rule 90 and if that was not done, the purchaser obtained a title which could not thereafter be attacked by the sons. Patanjali Sastri J. delivering the judgment of the Bench observed :

"are the plaintiffs then entitled to avoid the sale to Sundararaja Pillai, so far as their shares are concerned? Their father the first defendant failed to take any steps to have the sale set aside under Order 21, Rule 90 on account of the irregularity, presumably because no substantial injury had resulted, nor did they avail themselves of that remedy which was open to them, also as persons whose interests are affected by the sale. See --'Bubaneshwar Prasad Narayan Singh v. Behari Lal', AIR 1935 Pat 205(B) ..... If omission to attach does not affect the jurisdiction of the court to sell and is a mere irregularity, the purchaser's title cannot, as it seems to us, be displaced by any antecedent irregularity in publishing or conducting the sale, except by resort to the statutory remedy provided by Order 21, Rule 90. That remedy not having been availed of, the purchaser's title has become unassailable and the appeals must fail."

The position, therefore, is that if what happened at the conduct of the sale was only an irregularity, it can be questioned only by an application under Order 21, Rule 90. But if that would amount to an illegality, such as would render the sale void, then a suit would be maintainable. The point for decision then is whether the sale of the properties on 26-1-1042 is void on the ground that it was notified for 24-1-1942 and there was no order adjourning it to 26-1-1942. The argument on behalf of the appellant is that a sale officer gets his authority to sell only under the orders of court, that when the sale proclamation fixes the time and place of sale, his authority is limited to a power to sell at the time and place so fixed and therefore apart from further orders of court, he has no authority to sell at a different time and place from what is mentioned in the sale proclamation. Such a sale, it is urged, is more than an irregularity, it is a nullity and the decisions in --'Basharutulla v. Umachurn Dutt', 16 Cal 794(C); --'Motahar Hossain v. Md. Yakub', AIR 1925 Cal 201 (D); --'Jayarama Aiyar v. Vridhagiri Aiyar', AIR 1921 Mad 583(E); --'Natesa Pillai v. Venkatarama Aiyar', AIR 1940 Mad 206(F) and --'Fakira v. Sangidas', AIR 1944 Nag 199(G), were quoted in support of this position. In '16 Cal 794(C), the facts were that the sale was fixed to take place on 12 noon, but it was actually held and concluded before time, at 10-30 a. m. The judgment-debtor filed a suit to set aside the sale on the ground that it was illegal and void. In agreeing with this contention the court observed as follows :

"By Section 287 of the Code (now Order 21 Rule 66) it is provided that, when any property is ordered to be sold by public auction in execution of a decree, the court shall cause a proclamation of the intended sale to be made in the language of such court. Such proclamation shall state the time and place of sale and shall specify fairly and accurately certain other things. There is then a provision in the Code that, before a sale takes place, the time and place of sale shall be advertised ... ... ... As a matter of fact the sale in this case did not take place at the time advertised ... ... ... Under these circumstances, it seems to us that there was no sale within the meaning of the Code at all, and that this proclamation of the time and place of sale and the taking place of the sale at the time and place advertised are conditions precedent to its being a sale under the Code at all. Under these circumstances, it appears to us that this property never has been sold under the Code, and consequently the plaintiff is entitled to a declaration that whatever took place when the property was put up for sale has no effect as against him and that he is entitled to recover this property."

This was followed in 'AIR 1925 Cal 201 (D)'. The learned advocate for the respondents has invited our attention to later pronouncements of the Calcutta High Court in which the correctness of these two decisions has been doubted. Considering the question on principle and apart from authorities, it is difficult to see why the prescriptions as to the time and place of sale in Order 21 Rule 66(2) should alone be held to amount to conditions precedent to a valid sale and not the others. The policy underlying the entire scheme of Order 21 is to ensure due publicity for court auction sales so that fair price could be realised for the properties. With this end, elaborate provisions are made for attachment of the properties, Rule 54; for settlement of sale proclamation, Rule 66; and for its publication, Rule 67. The sale is not to be held before the expiry of 30 days from the date of publication, Rule 68. The decree-holder is prohibited from purchasing the properties in court auction, unless he obtains leave of the court, Rule 72. All these provisions are enacted with one purpose and that is that the properties might fetch the best price possible. If there is a failure to observe any one of these rules, the sale following thereon could in no sense be said to be illegal because illegality consists in the violation of an express provision of law. For such illegalities, however, the statute provides a remedy and that is an application to set aside the sale under Order 21, Rule 90 on proof that substantial injury has resulted therefrom. Order 21, Rule 92 prohibits such matters from being made a ground of attack in collateral proceedings by way of suit.

Thus for breach of the rules contained in the Civil Procedure Code there is a special remedy provided under Order 21 Rule 90 and that, under Order 21 Rule 90, is the only remedy available to the party. Where the objection to the sale is not that a provision of the Code has been violated, but something apart from the Code, as where the sale is held without the legal representatives being on record, the limitations prescribed by Order 21 Rule 90 may not apply and other questions might arise for consideration. But in respect of the matters actually provided by the Code, it is difficult, to see why some of them viz., those relating to time and place should be regarded as fundamental conditions and not the others, which are also prescribed in language as mandatory and intended as such for the protection of the judgment-debtors as the provisions relating to time and place. It comes to this, that in respect of statutory provisions all of them relating to the same subject-matter, some are to be regarded as matters of jurisdiction, while others not. It is true that breaches of some of these rules may be more serious in character and have more damaging effect on the sale than breaches of other rules. But that will be an element legitimately to be taken into consideration on the question of substantial injury under Order 21, Rule 90. More than that, on what principle is a distinction to be sustained between breaches of the provisions of the Code wherefore the sale is, without more, to become void, and breaches wherefore the sale could be set aside only on proof of damage. That there is no rational basis for such a distinction held by Muthuswami Aiyar J. in -- 'Arunachalam v. Kulandasami', 5 Mad L. J. 70 (H), where the sale had been held in violation of Section 289 (Order 21, Rule 67). After expressing the opinion 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 required proof of substantial injury, notwithstanding any irregularity, before the sale is set aside,"

the learned Judge observed as follows:

"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 (Order 21, Rule 90) it can only mean not being in conformity to some one of the rules provided by the Civil Procedure Code to regulate execution sales. If it had been the intention of the Legislature to make a distinction between illegality & irregularity & to dispense with proving of actual loss in one case & 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 x x x I think that it is violation of an established rule of procedure regarding sales that constitutes an irregularity and it is the consequential loss that constitutes a material irregularity or ground for cancelling the sale."

6. The question whether failure to observe the provisions of the Civil Procedure Code relating to attachment and sale of properties in execution of decrees would render the sale a nullity has, subsequent to the decision in -- '16 Cal 794 (C)', come up for consideration by the Judicial Committee and by the courts in India. The trend of these decisions is clearly to establish that breaches of these rules will not render the sales void; but that they would only be material irregularities furnishing a ground for taking action under Order 21, Rule 90. In -- 'AIR 1947 Mad 213 (A)', it was held by Patanjali Sastri and Bell JJ., that omission to attach the properties before sale would be a material irregularity, but that it would not render the sale void. They observed:

"The position therefore is this: Attachment is a necessary preliminary to a judicial sale. But a sale without attachment is not a nullity. Omission to attach is a material irregularity which renders the sale liable to be set aside under Order 21, Rule 90 if substantial injury is proved."

In -- 'Marudanayagam Pillai v. Manickavasagam Chettiar', AIR 1945 P. C. 67 (I), the Privy Council had to consider the effect of a failure to observe the provisions of Order 21, Rule 66. That rule provides that the sale proclamation should state the time and place of sale and specify the property to be sold and the particulars relating to it such as the revenue payable thereon, the encumbrances to which it is subject and so forth. It was found by the Privy Council that the particulars given in the sale proclamation as to the valuation of the property were incorrect and that the provisions of Order 21, Rule 66(2) had not been complied with. The legal consequence of this default is thus stated by Sir John Beaumont:

"The position therefore is that this sale took place at a serious undervalue occasioned by failure on the part of the court and of the respondent decree-holder to carry out their obligations under Rule 66, and there can be no doubt that the appellant sustained substantial injury thereby. Their Lordships are of opinion that the case falls within the language of Rule 90 and that however dilatory and unsatisfactory the conduct of the appellant may have been, he has not on the facts found debarred himself of the right to have the sale set aside."

7. In -- 'Macnaghten Olpherts v. Mahabir Persad Singh', 9 Cal 656 (P.C.) (J), and --'Baliram Singh v. Set Narasingdas', AIR 1923 P. C. 93 (K), the Privy Council have held that the failure to state the amount of revenue as required by Order 21 Rule 66(2) is only a material irregularity. In view of the fact that the specification as to time and place as well as the specification of other particulars concerning the property are all prescribed by the same provision, what applies to one must logically apply to the others and if a breach as regards specification of value or of the revenue payable on the property is only a material irregularity, there is no reason why breaches as regards time and place should be held to be anything more than material irregularities. In -- 'Tassaduk Russel Khan v. Ahmed Hussain', 21 Cal 66 (P. C.) (L), a sale was held before the 30 days prescribed under Section 20 (now Order 21, Rule 68), In holding that this was only a material irregularity such as fell within the scope of Section 311 (now Order 21, Rule 90) and that the sale could be set aside only on proof of substantial injury, the Privy Council observed as follows:

"In the present case the decree-holder failed to comply with the full requirements of Section 290, but both on principle and authority their Lordships are of opinion that the case must be treated as the respondents themselves treated it, as one of material irregularity to be redressed pursuant to the provisions of Section 311, and in the application of that section it was incumbent on the respondents to have proved that they sustained substantial injury by reason of such irregularity."

8. In -- 'Gagrajmati v. Akbar Hussain', 29 All, 196 (P. C.) (M), the question arose with reference to a failure to observe the provisions of Section 291 corresponding to Order 21, Rule 69. The sale which was fixed for 20th February 1897 was not held on that date, but on 23rd February without fresh proclamation. In a suit to set aside the sale on the ground that it was illegal, the Privy Council held that it was a case of material irregularity and the only remedy of the judgment-debtor was to apply under Section 311 on proof that there was substantial injury and that a separate suit was barred. Lord Macnaghten observed:

"The Subordinate Judge held that, inasmuch as no fresh proclamation was issued, the sale was void, and therefore he pronounced a decree in favour of the judgment debtors."

The Court of appeal, assuming that a fresh proclamation ought to have been issued, held that the omission was an irregularity which had involved no loss to the debtor, that the only course open to the judgment-debtor was to object, as they did to the confirmation of the sale, and that it was not competent for them to impeach the sale by regular suit.

Their Lordships are of opinion that the decision of the High Court is perfectly right. The provisions of the Civil Procedure Code are, in their opinion, clear on the point."

In -- 'Rai Radha Krishna v. Bisheshar Sahay', AIR 1922 P. .C. 336 (N), it was held by the Privy Council that a purchase by a decree-holder who did not obtain permission under Section 294 (Order 21, Rule 72) did not render the sale a nullity; and that it was liable to be avoided only on an appropriate application by the judgment-debtor or some other person interested. The principle to be deduced from these authorities is that breaches of the provisions of the Civil Procedure Code relating to execution against immoveable properties commencing from their attachment down to their sale should all be dealt with under Order 21, Rule 90 and not otherwise and that the order of confirmation under Order 21, Rule 92 should give the final quietus to all objections which could be raised under Order 21, Rule 90.

9. Turning now to the authorities cited on behalf of the respondents in -- 'Gobardhan v. Saratchandra', AIR 1933 Cal 486 (O), the sale could not be held on the day fixed as it turned out to be a holiday and in consequence it was held on the next day. There being no allegation or proof that any injury had resulted by reason of the change in dale, Guha and Ghose JJ. held that in view of the decisions of the Privy Council, the sale could not be treated as a nullity and the decision in -- 'AIR 1925 Cal 201 (D)', was not followed. In --'Jogendranath v. Nabi Newaj', AIR 1938 Cal 699 (P), the sale was fixed for 20-7-1935. But, it was not held on that day nor was it adjourned in accordance with Order 21, Rule 69. The sale was actually held on 19-8-1935. On the facts this case is similar to the present one. The court below having set aside the sale as a nullity for want of an order of adjournment under Order 21, Rule 69 Edgley J. set aside that order and held, relying on the decisions of the Privy Council in -- '21 Cal 66 (P. C.) (L) and --29 All 196 (P. C.) (M)', that the sale was not nullity, and that it could not be set aside order Order 21, Rule 90 on proof of substantial injury. The decision in -- 'AIR 1933 Cal 486 (Q)', was followed in preference to that in (SIC) 'AIR 1925 Cal 201 (D)'. In -- 'Rangpur (SIC) Office Ltd. v. Tarit Bhushan' AIR 1939 Cal 369 (Q), the sale which was fixed for a particular day was adjourned by the Nazir and the sale held on the adjourned date was held not be a nullity. As there was an actual adjournment of the sale by the Nazir, this case is not in point. But the observations in the judgment show that the court doubted the correctness of the decisions in -- '16 Cal 794 (C)', and -- 'AIR 1925 Cal 201 (D)'. The question was again considered in -- 'Asha Lata v. Manindranath', AIR 1942 Cal 275 (R). There a sale which was fixed for 10-1-1938 was stayed by the court on that date, but the order did not adjourn the sale to a specific date. On 15-1-1938 the court dissolved the stay and ordered that the sale be held on 17-1-1938. It was held on that day and the property was purchased by the decree-holder. The judgment-debtor contended that the sale was void on the ground that there was no order adjourning the sale on 10-1-1938, as required by Order 21, Rule 69. This contention was rejected and the sale was upheld. Here again, there was an order of court dated 15-1-1938 and therefore, the question now under consideration did not arise directly for determination. But the decisions in -- '16 Cal 794 (C)', and -- 'AIR 1925 Cal 201 (D)', were discussed and the opinion was expressed that in view of the decisions of the Privy Council in -- '21 Cal 66 (L)', and --'29 All 196 (M)', their correctness was open to doubt, and the decisions in -- 'AIR 1933 Cal 486 (O)', and -- 'AIR 1938 Cal 699 (P)', were approved. Thus, the weight of authority in the Calcutta High Court is decidedly against the view taken in -- '16 Cal 794 (C)', and --'AIR 1925 Cal 201 (D)'.

10. Turning now to the decisions of this court, in -- 'AIR 1921 Mad 583 (E)', the proclamation of sale stated that the sale would take place at Cuddalore before the Central Nazir. The process-server entrusted with the duty of publishing the sale proclamation announced in the village that the sale would be held in the Munsif's court, Villupuram. In fact the sole was held before the Central Nazir, Cuddalore. Appraised of the mistake made by the process-server, the court refused to confirm the sale, especially as it found that substantial injury had resulted from it. Against this order, the auction-purchaser appealed. In confirming this decision this court observed that the sale was illegal and void and not merely irregular; and that it was not even necessary to find substantial injury, as Order 21, Rule 90 had no application. Oldfield J. observed as follows:

"It seems to me that if, when a proclamation was made any of the usual and effective methods prescribed or permitted by the Code for its publication has been misleading as to details of the matter proclaimed and has been such as not merely not to give information to possible bidders, but to divert them to a place where the sale is not to be held, the result must be in the words of -- '16 Cal 794 (C)', that the property had never been sold under the Code at all."

Seshagiri Aiyar J. after referring to the decision in -- '16 Cal 794 (C)', stated thus:

"In that case the question was whether if a sale was held at an hour anterior to the one mentioned in the proclamation the sale was irregularly conducted or whether it was illegally held. The learned Judges came to the conclusion that there was a violation of the fundamental conditions of the sale, namely, the time of sale, and that consequently the sale was a nullity. The same argument can be used with reference to a sale held at a place different from the one mentioned in the proclamation. I concede that it is not easy to draw the line between an irregularity and an illegality, but I am clear that where a substantial provision of law has been violated, and that has the effect of not attracting persons who could be expected to be present for the purpose of bidding at the sale, the sale should be regarded as having been illegally conducted."

The correctness of the. decision in -- 'AIR 1921 Mad 583 (E)', is not open to doubt. There had been a misrepresentation by an officer of court and the court had under the circumstances not merely the inherent power, but was under a duty not to confirm the sale (vide --'Raghavaehariar v. Murugesa Mudaliar', AIR 1923 Mad 635 (S)', and -- 'Kandasami Mudali v. Narasimha Iyer', (T), and this jurisdiction could be exercised whether the sale is illegal or merely irregular and whether it had resulted in substantial injury or not and as the validity of the sale had been disputed at the stage of confirmation of the sale and not in collateral proceedings by way of suit, it was strictly speaking not even relevant to consider whether the sale was a nullity or not. Moreover, the observations that conditions as to time and place of the sale are fundamental and their violation would render the sale void rest on the authority of -- '16 Cal 794 (C)', and as already mentioned, that decision has not been followed in later authorities of that court. No reference was made to the decisions in -- '21 Cal 66 (L)', and -- '29 All 196 (M)'. There is thus considerable ground for dissenting from the reasoning on which the decision in -- 'AIR 1921 Mad 583 (E)', is based. But in the present case we are not concerned with a sale held at a place different from that which was advertised, and therefore, the decision in -- 'AIR 1921 Mad 583 (E)', does not directly apply. One of the cases discussed in -- 'AIR 1921 Mad 583 (E)', by Seshagiri Aiyar J. is the decision of the Privy Council reported in -- 'Ranglal Singh v. Ravaneshwar Parshad Singh', 39 Cal 26 (P.C.) (U). There, the sale was fixed for 13-7-1903. But as the Presiding Officer was not in station, the sale was not held on that date, it was actually held on 20-7-1903, after the Officer had returned. There was no order on 13-7-1903 adjourning the sale to a specified date. The Privy Council held that ever if there was irregularity in the conduct of sale, there was no proof of substantial injury, and the sale could not therefore be set aside. Dealing with this case, Seshagiri Aiyar J. observed:

"The people in the locality were apparently aware that in consequence of the absence of the presiding officer the monthly sales would not be held on the usual day, but would be held immediately on the return of the presiding officer. On these facts the Judicial Committee came to the conclusion that there was only an irregularity, and that it would not vitiate the sale unless substantial loss was proved. That case is no authority, for this case, where there was no proclamation relating to the place where the sale is actually held."

If this is a sound distinction, the present case will be governed by the decision in -- '39 Cal 26 (P. C.) (U)', and not by -- 'AIR 1921 Mad 583 (E)'.

11. In -- 'AIR 1940 Mad 206 (F)', the sale was advertised to begin on 26-7-1935 and to be concluded on 5-8-1935. But it was not closed on 5th August. The sale was continued till 12th August on which date it was concluded. In holding that the sale was illegal, Stodart J. observed:

"Its (court's) action in selling the property on a date subsequent to that date was positively illegal. A sale which is held on a day on which it has been expressly proclaimed that it shall not take place is not a valid sale at all. For that reason we must hold that this sale was vitiated by illegality, that it was a nullity, and must therefore be set aside."

12. But this decision was reversed on appeal by the Judicial Committee (Vide -- 'Venkataramana Ayyar v. Natesa Pillai', (1944) 2-Mad L. J. 352 (P. C.) (V). The Board observed :

"In view of the agreement and the order of the court their Lordships are unable to see that there was any material irregularity in the proceedings, still less any illegality."

Finally reliance was placed on the decision in -- 'AIR 1944 Nag 199 (G)'. There, it was held that when an adjourned sale is held at a different place without a fresh proclamation, it is not merely irregular but null and void. The court observed:

"In the absence of any proof that notice of the change of date and place had actually been published on the 16th April to the assembled intending purchasers at Bori Adgaon it must be held that the sale which was held five days later at Khamgaon was a nullity not having been held in accordance with the provisions of the Code, and in the absence of any proclamation whatever that the sale was to take place on that date and at that place. It is not merely an irregularity when a sale is postponed and held at some other place without any actual new proclamation."

There is no discussion of the authorities and the decision is not of much assistance.

13. On a consideration of the authorities, We have come to the conclusion that when a sale is held on a date different from that notified, without an order of adjournment and without a further sale proclamation that would amount only to an irregularity and the only remedy open to the party aggrieved is to apply to set aside the sale under Order 21, Rule 90 on proof that substantial injury has resulted therefrom. Such an application was in fact filed on behalf of the plaintiff, but it was dismissed as no security was furnished as required by the rules. The sale having been confirmed, the title of the purchasers becomes indefeasible and it is not open to challenge on any of the grounds now put forward. This contention therefore, fails.

14. It remains only to state that while the appeal was pending the second and third defendants entered into a compromise with the plaintiff and a decree hag been passed in terms of the compromise. The rights of defendants 1, 4, 5, 6 and 7 will be governed by this decision. As against them the appeal is dismissed with costs, one set to be divided in proportion to their interest.


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