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BipIn Bihari Bejali Vs. Kanti Chandra Mandal - Court Judgment

LegalCrystal Citation
Decided On
Reported in18Ind.Cas.715
AppellantBipIn Bihari Bejali
RespondentKanti Chandra Mandal
Cases ReferredParashram Hanmania v. Balmukund Lachiram
civil procedure code (act v of 1908), section 115, order xxi, rules 54(2), 66(2) and 90 - 'irregularity in publishing sale'--irregular preparation of sale proclamation--omission to issue notice to settle details to be stated in sale proclamation--failure to promulgate order of attachment--fraud--setting aside sale for fraud--auction-purchaser no party to fraud--question of law not of jurisdiction. - .....notice required by rule 66(2) to be given to the decree-holder and the judgment-debtor before a sale proclamation is drawn up.4. in support of the suggestion that the second of these--which it will be convenient to deal with first--was not an irregularity in publishing the sale,' the learned vakil for the appellant judgment-debtor has cited parashram hanmanta v. balmokund lachiram 32 b. 572; 10 bom. l.r. 752. but what that case decides--and, i venture to say, rightly decides--is that the omission to issue to the judgment-debtor the notice prescribed by order xxi, rule 22, of the present code (corresponding with section 248 of the code of 1882) is not an irregularity in publishing the sale. it is, therefore, not an authority for the present contention, which i have no hesitation in.....

Herbert Carnduff, J.

1. The appeal and the petition for revision before us attack an appellate order refusing to set aside an execution sale on the ground of material irregularity and fraud in publishing it

2. As to the appeal, it is, and must be, conceded that, if the original application for the setting aside of the sale was within the scope of Order XXI, Rule 90, of the Code of Civil Procedure, 1908, no second appeal lies. But it is contended that the application did not fall under that rule, neither of the irregularities complained of by the judgment-debtor being an 'irregularity in publishing the sale,' and that it must, therefore, be held to have been made under Section 47 of the Code, in connection with which there is a right of second appeal.

3. The irregularities in question are: (1) the failure to publish in the manner prescribed by Order XXI, Rule 54(2), the order for the attachment of the judgment-debtor's immoveable property, and (2) the omission to issue the notice required by Rule 66(2) to be given to the decree-holder and the judgment-debtor before a sale proclamation is drawn up.

4. In support of the suggestion that the second of these--which it will be convenient to deal with first--was not an irregularity in publishing the sale,' the learned Vakil for the appellant judgment-debtor has cited Parashram Hanmanta v. Balmokund Lachiram 32 B. 572; 10 Bom. L.R. 752. But what that case decides--and, I venture to say, rightly decides--is that the omission to issue to the judgment-debtor the notice prescribed by Order XXI, Rule 22, of the present Code (corresponding with Section 248 of the Code of 1882) is not an irregularity in publishing the sale. It is, therefore, not an authority for the present contention, which I have no hesitation in rejecting; for I find it impossible to accept the view that the irregular preparation of the actual proclamation definitely announcing that a sale will be held and giving particulars regarding the property to be sold is not an 'irregularity in publishing the sale.'

5. There remains only the question whether failure to comply with the provisions of Rule 54(2), as to the promulgation of the order attaching the property which a decree-holder seeks to sell in execution of his decree, comes within the purview of Rule 90. To this, the answer I would give is that the words 'irregularity in publishing the sale' are wide enough to cover such failure, and that there is no reason for construing them so narrowly as to exclude it.

6. It mast, I take it, be granted that the phrase 'publishing the sale' does not refer to anything done after the sale has been held. In other words, it cannot mean publication of the fact that a sale has been held. First, because the law requires no such subsequent publication; and secondly, because such subsequent publication could not possibly have any effect upon the sale already held. Indeed, the phrase can, so far as I can see, refer to nothing more or less than the action prescribed with a view to rendering public the fact that a sale is contemplated.

7. Now, if there is one thing more certain than another, it is this, that the action prescribed by Rule 54(2) is prescribed solely with a view to a sale in execution, and that the effect, and one (if not the principal) object of it, alike is to let all the world, including the judgment-debtor, know that such a sale is in contemplation. It does this really as much as the subsequent sale proclamation; for the contemplated sale does not necessarily take place even after the latter, and, therefore, neither the one nor the other does more than proclaim, arbi et orbi, the probability that there will be a sale. No doubt, the attachment may be objected to, and any objections raised have to be decided by the executing Court. No doubt, a sale has to be ordered, under Rule 64, after the disposal of such objections. No doubt, the subsequent sale proclamation is more definite and furnishes fuller details as to the date of sale and the particulars regarding the property to be sold. But, in so far as public advertisement of the sale goes, the only distinction I can draw between the two is that the degree of probability that the property will be sold in execution may be greater after the latter proclamation of sale than after the earlier proclamation of attachment with a view to sale.

8. That the matter has always been regarded in this light in Bengal I feel sure and also infer from the absence of any case-law on the subject here. Fortunately, however, I find two instances in which the Allahabad High Court has placed the construction on the words which commends itself to me. In Ram Chand v. Pitam Mal 10 A. 506; A.W.N. (1888) 195 Brodhurst and Mahmood, JJ., held that absence of attachment at the time of sale was a material irregularity in publishing or conducting' within the meaning of Section 311 of the former Code (corresponding with Order XXI, Rule 90, of the present Code); while Mahmood, J., further pointed out--see page 515 of the report--that to hold otherwise would be to deprive a judgment-debtor of any appeal in this connection, since, in his view, the provisions of Section 244 of the Code of 1882 (corresponding with Section 47 of the Code of 1908) would be inapplicable and unavailable. And eleven years later, this decision was expressly followed in Sheodhyan v. Bholanath 21 A. 311 by Banerjee and Aikman, JJ., from whose judgment I cannot do better than quote: In our opinion,' observed those learned Judges, 'the absence of attachment... did not amount to anything more than a material irregularity in the publishing of the sale. An attachment is a step towards the sale of the judgment-debtor's property. The object of an attachment is to bring the property under the control of the Court, with a view to prevent the judgment-debtor alienating it, and thereby preventing its sale in execution of the decree. In the case of immoveable property, one of the requirements of the law for perfecting an attachment is that the order of attachment should be publicly proclaimed. The main object of the proclamation of the order is to give publicity to the fact that the sale of the particular property attached is in contemplation, and to warn all persons against taking a transfer of it from the judgment-debtor to the prejudice of the rights of the decree-holder enforceable under the decree. The publication of the attachment is thus a step leading up to the publication of the sale, the actual proclamation of sale being a notice to the public that the sale is to take place on a particular date. The absence of attachment may, therefore, be deemed to be a material irregularity in the publishing of the sale.'

9. This seems to me to be both good law and good sense; and against it the only authority that the learned Vakil for the appellant has been able to cite, is the Bombay case which I have already mentioned and shown to be beside the point. I have myself sought for farther authority on the other side; but all I can find is the refusal of Sir Barnes Peacock to express any opinion upon the question when his Lordship delivered the judgment of the Judicial Committee in Macnaghten v. Mahabir Pershad Singh 9 C. 656 at p. 660. That case, then, decides nothing; but it is perhaps permissible to remark that, from it the fact transpires that, as far back as in 1879, when it first came before the Courts in Bengal, the plea that a sale was void for material irregularity in publishing it because there had been no proper attachment was raised; and such a plea, although it must surely have been taken again and again in this Province, has, so far as the reports show, never been thrown out.

10. I would add one more observation in connection with this appeal. In Rasaraj Kunai v. Prosonna Kumar Roy 40 C. 45; 15 Ind. Cas. 506 it has lately been held by this Court that, even where the irregularity complained of does not fall within the words used in Rule 90, but must be dealt with under Section 47, a sale ought not to be set aside on account of it unless it is shown to have caused substantial injury to the complainant. In the case before us, a sale proclamation was apparently duly issued after the attachment: consequently, it can hardly be suggested that any irregularity in the publication of the earlier notice of attachment can have affected the sale and prejudiced the judgment-debtor at all. Even, then, if there were a second appeal in this case, it is clear that it would be without merit and bound to fail. And in this connection, it is interesting to find that the special Committee appointed to settle the Draft Bill, which eventually became the Code of 1908, omitted, for the reason I have just indicated, any reference in Rule 90 to an irregularity in publishing the order of attachment.

11. The result is that I would dismiss the appeal as incompetent.

12. As regards the Rule, all I need say is that, if the learned District Judge did hold that a sale in execution could not be annulled on the ground of fraud unless it were proved that the auction-purchaser had been a party to the fraud, the most that can be urged is that he made a mistake in his law; but that is not a ground for interference in revision under Section 115 of the Code. The Rule, therefore, ought, in my opinion, to be discharged.

13. The respondents (opposite party) are entitled to their costs in both the appeal and the Rule; but I would allow only one hearing fee of three gold mohurs.

Beachcroft, J.

14. The question is whether the words 'material irregularity or fraud in publishing it' i.e., a sale, in Order XXI, Rule 90, cover the case of a failure to proclaim an attachment order under Order XXI, Rule 54. If so, admittedly no second appeal lies: if nor, there is admittedly a second appeal, for the question between the parties is one under Section 47.

15. My own view is that the word 'publishing' in Order XXI, Rule 90 refers back to the word published' in Rule 67, which it may be noted was not to be found in Section 289 the corresponding section of the old Code, Act XIV of 1882.

16. An order for sale under Rule 64 cannot be made till after the property has been attached, and the proclamation under Rule 54(e) is part of the attachment. Therefore, at the time of the attachment proclamation or sale is only a probability, to put it at the highest, for either of two contingencies may stop the sale; the decree may be satisfied, or the decree-holder may not take the necessary steps to procure an order for sale. After the order for sale is made, it is only satisfaction of the decree which will stop the sale except, of course, in such cases as are contemplated by Rules 69 and 83.

17. The difference between the two stages is this; in the first sale is only probability, in the second, it is a certainty.

18. Form No. 24 Appendix E. of the Code, which is the form prescribed for the order contemplated in Order XXI, Rule 54, also seems to suggest that the attachment proclamation is not intended to give notice of sale. It is a prohibitory order pure and simple.

19. In ordinary parlance, publishing' a sale would be understood to mean a notice starting the date fixed for the sale and particulars as to the property to be sold and I confess it seems to me to be a straining of language to say that an act is a publishing of the sale, which is done not only before the date is fixed but before it is finally decided that there will be a sale at all.

20. However, the weight of judicial decision is against my view. Four Judges of the Allahabad High Court have taken the contrary view, Ram Chand v. Pitam Mal 10 A. 506; A.W.N. (1888) 195 and Sheo Dhyan v. Bholanath 21 A. 311 and as my learned brother also takes that view, I do not think I should be justified in pressing mine.

21. There are observations in the case of Parashram Hanmania v. Balmukund Lachiram 32 B. 572; 10 Bom. L.R. 752 which support my view but that case cannot be considered as an authority on the point, for the present question was not before the learned Judges.

22. I, therefore, agree in dismissing the appeal and discharging the Rule with costs.

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