Skip to content


Kalytara ChowdhraIn Vs. Ramcoomar Gopta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal466
AppellantKalytara Chowdhrain
RespondentRamcoomar Gopta
Excerpt:
execution of decree - sale in execution--material irregularity--civil procedure code (act x of 1877, sectionsection 274, 289, 311.) - .....merely to the beating by drum, and that the provision made for the affixing of a copy of the sale-proclamation in the civil court and in special cases also in the collector's court, and the omission of any similar provision regarding a copy on the spot, indicates the intention of the legislature not to require this formality. i am unable to accept this view of the law. a consideration of section. 289 asit originally stood will clearly show the reason for the addition made to it by the amending act.the proclamation shall be made in manner prescribed by section 274 on the spot where the property is attached 3. this is how the law was first expressed, and applying section 274 to make a sale-proclamation on the spot where the property was attached, it was necessary, to use the words of.....
Judgment:

Prinsep, J.

1. Having found in concurrence with the lower Court that a copy of the proclamation of sale was not affixed to some conspicuous place within the property attached and to be sold, and that the very inadequate price realized may be fairly attributed to this omission, it becomes necessary to consider the point taken by the learned Counsel for the appellant that this was a formality not required by the law then in force. The proceedings were taken on the 30th July 1879, and were therefore to be regulated in accordance with the Code of Civil Procedure as amended by Act XII of 1879. Section 289, as it now stands amended by Act XII, is to the following effect:

The proclamation shall be made in manner prescribed by Section 274 on the spot where the property is attached, and a copy thereof shall be fixed up in the Court-house; and in the case of land paying revenue to Government, also in the Collector's office.

2. It is contended by Mr. H. Bell, that the manner in which the proclamation is to be made on the spot refers merely to the beating by drum, and that the provision made for the affixing of a copy of the sale-proclamation in the Civil Court and in special cases also in the Collector's Court, and the omission of any similar provision regarding a copy on the spot, indicates the intention of the Legislature not to require this formality. I am unable to accept this view of the law. A consideration of Section. 289 asit originally stood will clearly show the reason for the addition made to it by the Amending Act.

The proclamation shall be made in manner prescribed by Section 274 on the spot where the property is attached

3. This is how the law was first expressed, and applying Section 274 to make a sale-proclamation on the spot where the property was attached, it was necessary, to use the words of Section 274, that it should be ' proclaimed at some place on or adjacent to such property (i.e., the property to be sold) by beat of drum or other customary mode, and a copy should be fixed up in a conspicuous part of the property.

4. The law was altogether silent regarding the affixing of a copy of the sale-proclamation elsewhere. This omission was discovered, and accordingly an addition was made to Section 289, by enacting 'and a copy thereof shall be fixed up in the Court-house, and in the case of land paying revenue to Government, also in the Collector's office.

5. This in no way affected the previous part of Section 289, which still remained in force. I cannot, moreover, suppose, that the Legislature can have intended to enact that the fixing up of a copy of the sale-I acclamation on a conspicuous part of the property should be discontinued with out some express provision to that effect, as it is one of the most important fo (sic) aalities in connection with the due publication of a proclamation, and is always necessary in the making of proclamation under other laws for other purposes, to supplement the proclamation by word of mouth after beating of the drum.

6. We therefore set aside the sale, and dismiss this appeal with costs.

Morris, J.

7. Assuming that Act X of 1877, as amended by Act XII of 1879, regulates the procedure to be adopted in this case, I think that the construction put on Section 289 by my learned colleague is the right construction. It seems to me that the Legislature never intended to discard one of the most important elements in the publication of a sale-proclamation,-viz., the affixing a copy of the order of proclamation of sale on a conspicuous part of the propety to be sold. Section 289, as originally drafted, by its terms limited the making of the proclamation to ' the spot where the property is attached, ' so it was to correct this apparent limitation that the Amending Act extended the mode of making the proclamation by adding the words 'and a copy thereof shall be fixed up in the Court-house, and in the case of land paying revenue to Government, also in the Collector's office.' These additional words, or at least the substance of them, is to be found in Section 274; and it is evident that, by supplying them to Section 289, the Legislature simply intended to prescribe the adoption of precisely the same mode of making the proclamation of sale as it had previously prescribed in Section 274, for making attachment of immoveable property


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //