1. This rule is directed against an order of the learned District Judge of Mymensingh dated 30th April 1937 by which he set aside the order of the Munsif of Netrokona dated 24th September 1936. The decree-holders are the petitioners before this Court and it appears that in 1932 they obtained a mortgage decree against the opposite parties which they put into execution in 1934. The first execution ease was dismissed but in subsequent execution proceedings under an order dated 31st May 1935 it was directed that a sale proclamation should issue fixing 20th July 1935 for the sale of the judgment-debtor's property. The sale was not actually held on that day nor was any adjournment order made under the provisions of Order 21, Rule 69, Civil P.C. But we find that on 19th August 1935 the judgment-debtors' property was put up to auction and sold to the decree-holders. The opposite parties thereupon applied to set aside the sale on 21st May 1936, their contention being that they only came to know of the sale on 27th April 1936. Their application was made on the grounds that the requisite processes had not been served and that the judgment-debtors had sustained material loss by reason of irregularities connected with publication and holding of the sale. It is however significant that in the petition addressed to the learned Munsif under the provisions of Order 21, Rule 90, Civil P. C, no mention was made of the fact that there had been substantial noncompliance with the provisions of Order 21, Rule 69, Civil P.C. The learned Munsif heard the application on 24th September 1936 and he found that the requisite processes had been duly served and he held that the petitioners in that case had been unable to establish their contention that any fraud had occurred in connexion with the sale and he further held that the application was barred by limitation. The judgment-debtors thereupon appealed. The learned Additional District Judge who heard the appeal on 30th April 1937 appears to have accepted the finding of the first Court to the effect that the requisite processes had been duly served. But he further held that as there had been substantial non-compliance with the provisions of Order 21, Rule 69, Civil P.C., the sale held on 19th August 1935 was a nullity and as he found that the applicants had sustained substantial injury by reason of the sale he held that the judgment-debtors' petition could not be rejected on the ground of limitation. He therefore set aside the sale which was held on 19th August 1935.
2. A preliminary objection has been urged by the learned advocate for the opposite parties on the ground that this rule is incompetent on account of a defect of parties. It appears from a reference to the order book of this Court that opposite parties Nos. 2, 5 and 6 were properly represented both in this Court and in the lower Court and as regards opposite party No. 21 it appears that the appeal against him was dismissed in the lower Appellate Court and he does not appear to be the person whose interests are in any way likely to be affected at this stage. I do not consider that there is any force in this contention. The main point for decision in connexion with this application is whether or not the learned Additional District Judge of Mymensingh was correct in holding that the sale which was held on 19th August 1935 was a mere nullity. This view obtains some support from the decision of this Court in Motahar Hossain v. Mohammad Yakub : AIR1925Cal201 in which Greaves J. held that a sale was a nullity which had been held on a date other than that fixed for the sale of the property taken in execution. This decision was however discussed by Guha J. in Gobardhan Behari v. Sarat Chandra : AIR1933Cal486 In that case the learned Judge made the following observations:
Reference was made in this connexion to the decision of this Court in 40 C L J 811.1 In view of the observations made by the Judicial Committee of the Privy Council from time to time, and regard being also had to the fact that in the case to which reference has been made above, there was no date actually fixed for the sale of the properties, it would not lie in the mouth of the judgment-debtors, appellants in this Court, to say that the sale in the present case was one which could be avoided by them on the ground that it was a nullity, seeing that the sale in the present case was fixed for a particular date, but could not be held on the date so fixed, because it was a holiday.
3. The observations of the Judicial Committee of the Privy Council to which Guha J. refers are probably those contained in the judgments of the cases in Tassaduk Rasul Khan v. Ahmad Husain (1894) 21 Cal 66 and Gajrajmati Teorain v. Saiyid Akbar Husain (1907) 29 All 196 In the first of these cases their Lordships of the Judicial Committee discussed the effect of non-compliance of the provisions of Sections 289 and 290 of the old Code which correspond to Order 21, Rules 67 and 68 of the Code of 1908. These provisions like the provisions of Order 21, Rule 69 have been designed for the protection of the judgment-debtors and for the purpose of ensuring that properties of such persons shall not be put to sale unless due publicity is given to the fact that a sale is to be held and a proper opportunity is afforded to bidders to attend the sale after proper notice has been given. On the question of non-compliance with the provisions of Section 290 of the old Code, their Lordships of the Judicial Committee made the following observations:
It was contended on the part of the respondents that the non-compliance with the interval of 30 days between' proclamation and sale made the sale a nullity. Their Lordships cannot accede to that contention. The proceeding in this case was brought by the respondents under Section 311, which deals with material irregularity. The non-compliance with the provisions for posting was a material irregularity...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 811, 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.
4. Similarly in Gajrajmati Teorain v. Saiyid Akbar Husain (1907) 29 All 196, cited above, their Lordships of the Judicial Committee were directly dealing with the question of non-compliance with the provisions of Section 291 of the old Code which corresponds to Order 21, Rule 69 of the new Code. The High Court had held that the omission to issue a fresh proclamation under Section 291 of the old Code was a matter concerning the publishing or conducting the sale within the meaning of Section 311, and that no regular suit would lie for the purpose of setting aside a sale which had been held in violation of the terms of Section 291 of the Code. With regard to this point, the judgment of the Judicial Committee was delivered by Lord Macnaghten who made the following observations:
It appears, however, to have been assumed in the present litigation, and their Lordships assume for the purpose of their judgment, that the case came within Section 291, Civil P.C., and that when the stay of proceedings was removed a fresh proclamation ought to have been issued incompliance with the terms of that Section. 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-debtors 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 Code of Civil Procedure are, in their opinion, clear on the point.
5. The two cases cited above appear to have been decided by the Judicial Committee on the general principle that failure to comply with the provisions of the Civil Procedure Code which are now contained under Order 21, Rules 67 to 69 of the present Code, would not alone render a Court sale a nullity, but it would be necessary for a person who is aggrieved by the non-compliance with these provisions to treat such non-compliance as a material irregularity which he must urge in a properly constituted application under Order 21, Rule 90, Civil P.C., which corresponds to Section 311 of the old Code. In this case, as pointed out above, the judgment-debtors themselves took no steps to have the sale set aside on the ground that it had been vitiated by reason of any irregularity which arose by reason of non-compliance with the provisions of Order 21, Rule 69 of the Code, and I do not think that on the authorities which have been cited that it was open to the learned Additional District Judge to treat the sale as a mere nullity which could be disregarded without having resorted to the requisite provisions of the Code whereby a remedy has been provided to judgment-debtors under Order 21, Rule 90 for having a sale set aside in connexion with which irregularities may have occurred.
6. The finding of the first Court to the effect that the requisite processes had been duly served has not been set aside by the learned Additional District Judge and I do not think that it was open to him to go into the question of non-compliance of the provisions of Order 21, Rule 69, Civil P.C., and to treat such non-compliance as nullifying the sale especially as this is a matter which was not raised in the grounds of appeal before him. It follows therefore that in my opinion the learned Additional District Judge has exercised his jurisdiction illegally and with material irregularity. His order is therefore set aside and the decision of the first Court is restored. The rule is accordingly made absolute. The petitioners are entitled to get all the costs incurred in this rule. The hearing-fee is assessed at three gold mohurs.