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Swaminatha Aiyar Vs. S. Sivagurunatha Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.990
AppellantSwaminatha Aiyar
RespondentS. Sivagurunatha Chettiar
Cases ReferredTasadduk Rasul Khan v. Ahmad Husain
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 66, 67 and 90 - sale in execution of a decree--irregularity in proclamation, whether enough for setting aside sale--applicant, what must prove. - - 371. further, the learned subordinate judge has, on a consideration of the affidavits on both sides, come to the conclusion that the appellant had failed to prove that the properties sold fetched a lower price than they would have fetched if the irregularity had not occurred. though one of his reasons, namely, the probability of this kannambadi dam having loomed large in the eyes of intending bidders seems a little fanciful, we think that he has given other good reasons for his conclusion that the lands fetched as fair a price as could be expected at a compulsory court auction sale......the only irregularity in publishing or conducting of the sale proved in this case was that in the sale proclamation fixing the sale for 16th april 1914, about 30 acres were by mistake included in the lands mentioned in the first of the four lots advertised for sale, whereas those 30 acres should have been entered in the second of the four lots. but the sale was conducted rightly of only the remaining 56 acres as exhausting the first lot. strictly speaking, no doubt, there should have been a fresh proclamation in respect of the sale of the first lot. but the correction was made at the instance of the appellant himself and he did not insist on a fresh proclamation and did not ask for an adjournment of the sale of lands in the first lot as corrected at his instance. to allow a party who.....
Judgment:

1. The only irregularity in publishing or conducting of the sale proved in this case was that in the sale proclamation fixing the sale for 16th April 1914, about 30 acres were by mistake included in the lands mentioned in the first of the four lots advertised for sale, whereas those 30 acres should have been entered in the second of the four lots. But the sale was conducted rightly of only the remaining 56 acres as exhausting the first lot. Strictly speaking, no doubt, there should have been a fresh proclamation in respect of the sale of the first lot. But the correction was made at the instance of the appellant himself and he did not insist on a fresh proclamation and did not ask for an adjournment of the sale of lands in the first lot as corrected at his instance. To allow a party who stands by when an irregularity is committed within his knowledge and in his presence to afterwards take advantage of that irregularity in support of his application to set aside a Court auction sale has been strongly animadverted upon by their Lordships of the Privy Council in Arunachellam v. Arunachellam 12 Ma.19; 15 I.Aa. 171; 5 Sar. P.C.J. 265; 12 Ind. Jur. 371. Further, the learned Subordinate Judge has, on a consideration of the affidavits on both sides, come to the conclusion that the appellant had failed to prove that the properties sold fetched a lower price than they would have fetched if the irregularity had not occurred. Though one of his reasons, namely, the probability of this Kannambadi dam having loomed large in the eyes of intending bidders seems a little fanciful, we think that he has given other good reasons for his conclusion that the lands fetched as fair a price as could be expected at a compulsory Court auction sale.

2. Further, assuming that injury is shown to have occurred, their Lordships of the Privy Council have held in Tasadduk Rasul Khan v. Ahmad Husain 21 C. 66; 20 I.A. 176, that 'direct evidence' to connect the irregularity with the alleged loss has to be adduced to satisfy the requirements of the section allowing Court auction sales to be set aside. There is no evidence so connecting the irregularity in this case and the alleged injury adduced on the appellant's side, except the statement in his own affidavit (paragraph 11) that 'some' intending bidders went away thinking that a fresh proclamation would be issued, etc. This statement is hardly worth the name of evidence.

3. We, therefore, dismiss the appeal with costs.


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