A.P.V. Rajendran vs S.A. Sundararajan and Others

Ramanujam, J.—The appellant. who in, the same in an then appeals in a decree-holder in O. S. No. 328 of 1972 an the file of the Sub

Court, Madurai He obtained a decree in the add suit on 22-10-1971 Even before the passing of the decree he had attached the property of the

respondent judgment-debtor in I A. No. 597 of 1971 before judgment. The said attachment was made absolute an the date of the decree. The

appellant thereafter filed E. P. 222 of 1972 for the sale of the attached property to Teatime the decree amount. On 6-2-1973 and 17-4-1973, the

respondent has paid in all a sum of Rs. 6,000. For the balance of the decree amount let No. 1 of the attached property was actually sold, on 28-1-

1974, for a sum of Rs. 40,000, to the decree-holder and the second lot was not sold for want of bidders. The sale of lot No. 1 was confirmed by

the court on 2-3-1974 and full satisfaction of the decree has also been recorded.

Subsequently the appellant filed a petition in E A. 600 of 1974, in E. P. 222 of 1972, for setting aside the sale of lot No. 1 held on 28-1-1974,

u/s 47 C. P. Code on the ground that there were several irregularities in the settlement of the sale proclamation and also in the conduct of the sale.

The irregularities alleged were - (1) that the proclamation was not duly drawn up according to law in that a sum of Rupees 6,000 paid on two

earlier dates on 5-2-1973 and 17-3-1973,. had not been given credit to and that the sale proclamation had not been properly filled up and it

contained a number of gaps; (2) that the sale proclamation did not also contain the date of auction and the date when the court had posted the case

for further hearing after auction; (3) that the sale proclamation did not give half yearly tax payable for-lot No.1or the revenue assessment for lot

No. A which are quite material to enable the intending bidders to know the actual value of the two lots; (4) that the reduction of the upset price

from Rupees 80,000 to Rs. 40,000 for lot No. 1 is not proper and (5) that the judgment-debtor is an agriculturist entitled to the benefits of Act IV

of 1938, as amended and the decree-holder cannot claim any interest prior to 1-3-1962 and therefore the amount mentioned in the sale

proclamation as being due from the Judgment-debtor is incorrect.

The said application filed by the judgment-debtor u/s 47 C. P. Code for setting aside the sale was resisted by the appellant an various grounds

The first and foremost defense taken is that an application for setting aside the sale u/s 47 C. P. Code is not maintainable and that it in also barred

by limitation. The other defences are that the proclamation was drawn up for the law, that the sale proclamation was drawn up for the amount

actually due after giving credit to the payment made by the judgment-debtor, that there was no irregularity, much less material irregularity, in the

matter of either the settlement of the sale proclamation or In the actual conduct of the sale, and that the sale of lot No. 1 is perfectly legal and valid

and there was no undervaluation of that property.

The executing court, after considering the matter in detail, held that the sale proclamation did not comply with the provisions of Rule 66 of Order

21 C. P. Code, is that it contained got of blanks that it did not mention the place in the court building where the auction was to take place, that it

did not mention the exact time when the auction would be held, that the payments made by the judgment-debtor had not been given credit to and

that it did not mention the tax payable on the properties. On the question as to whether the Judgment-debtor is an agriculturist, entitled to the

benefits of Act IV of -1938, as amended, it took the view that he is not entitled to these benefits However, in view of its finding that there is

material irregularity in settling the sale proclamation, it set aside the sale.

As against the order In E. A. 600 of 1974 setting aside the sale, C. M. A. 386 of 1975 has been filed before this court. Before the executing

court the decree-hold6r has filed E. L No. 661 of 1974 for restoring an earlier application In E. A. 506 of 1974, for delivery of possession, which

had been dismissed on 24-7-1974. He has also filed an application in E, A. 662 of 1974, for removal of obstruction. The said two applications

were dismissed by the executing court as having become infructuous as the court auction sale has been set aside, for irregularities in the sale

proclamation. The orders dismissing E. A. 661 and 662 of 1974 have been challenged in C.M.A. 2 and 3 of 1976 respectively.

As C. M. A. 2 and 3 of 1976 are consequential on the disposal of the main C. M. A. 386 of 1975, the said appeals need not be dealt with

Separately.

Coming to C. M. A. NO. 386 Of 4975, the main question that has been canvassed therein before this court is whether an application for setting

aside The sale u/s 47, C. P. Code is maintainable on the facts and circumstances of this cam The learned counsel for the appellant decree holder

contends that the court below has not properly understood the relative scope of See. 49. C. P. C. and Order 21, Rule 90, C. P. Code, that the

difference in the legal implication of the provisions contained in Section 47 and Order 21, Fade 90 C. P. Code has been lost sight of that though

the application for setting aside the sale is purported to have been filed u/s 47, the averments in the Petition will attract only Order 21, Rule 90. C.

P. C. and that if the application is treated as one under Order 21, Rule 90. C.P.C, the same is barred by time.

The learned counsel for the respondent judgment-debtor. however, contends that an application under 6. 21, P. 90, C. P. C. could be filed only

when there is an Irregularity in the publication of the sale proclamation and in the conduct of the sale and not when the irregularity committed is

prior to the publication of the sale proclamation and that, therefore, the application u/s 47, C. P. Code, is maintainable in this case, as the

irregularity alleged relates to the - preparation and settlement of sale proclamation which is a stage prior to the publication Of the sale

proclamation, The stand taken by a the respondent gets support from the following decisions.

In Ramalingam Pillai Vs. Sankara Iyer (Died) and Others, Veeraswami, 3 as he then was, held that want of notice under Order 21, Rule 66, a

P. Code 25 an irregularity preceding the publication and conduct of the sale and that therefore, the said irregularity will not be covered by Order

21, Rule 90, C. P. C., The relevant Observation of the learned Judge is as follows :-

''It is said that the words publishing or conducting it will not cover the proceedings for settlement of the proclamation. In one sense, it may appear

that material irregularity in publishing a sale may take in the first step of settlement of a proclamation. This view may also appear to be supported

by the fact that the whole set of rules, from Rule 64 to Rule 104, is preceded by the heading sale generally. But, on a clear examination, I am

inclined to the view that the words material irregularity or fraud in publishing or conducting it cannot be extended to the material irregularity arising

out, of a, breach of the requirement of Rule 66 Separate sets of rules are framed under Order XXI one set relating to settlement of proclamation

and the other to the manner of publication of a proclamation of sale. Nevertheless Rule go speaks of material Irregularity or fraud in publishing or

conducting a sale. The rule to, my mind, will not, therefore cover any Irregularity in the settlement of proclamation. That I find Is also the view of a

Division Bench of this court In Neelu Neithiar v. Subramania Moothan, 11Mad LW 59: AIR 1920 Mad 481. The learned Judges there held that

an objection to an execution sale an the ground that before the drawing up of the proclamation, the notice required to be given under O. XXI, Rule

66 (2), C. P. C. was, not given to some of the judgment-debtors was not a matter relating to the publication or conduct of the sale within the

meaning of O. XXI R. 90. Following this view of the scope of Rule- 90, 1 hold, disagreeing with the lower appellate court, that the remedy of the

appellant was not under O. XXI, R. 90, C. P. C."" As is clear from the above extract, the learned Judge has followed a Division Bench of this court

in Neelu. Neithiar v. Subramania Moothan AIR1920 Mad481, wherein an application to set aside on of absence of notice of the settlement of the

sale proclamation as required by Rule 66, O. 21. C. P. C. was held not maintainable under O. 22, Rule 90. In that the Bench observed as follows

There we at least three stages contemplated by R. 66. First the settlement of the proclamation then Its publication and lastly the conduct of the

sale in pursuance of it. The first Of these stages is not a matter connected with the publication or the conduct of the sale. On the other hand it is

clearly anterior to both these processes.

The view taken In that case is that the ground of complaint relating to violation of Rule 66 can only be considered u/s 47 and not under Or. 21,

Rule 90 C. P. C.

In Natarajan Vs. Chandmull Amarchand by Power-of-Attorney, K. Milopchand and Another, , another Division Bench had also held that Or.

21, Rule 90 would apply only where the sale was sought to be set aside on the ground of material irregularity or fraud in publishing or conducting it

that want of notice under O. 21, Rule 64 or 66 being a stage anterior to the publication of the proclamation of sale under Rule 67 or Conducting

the sale, it would not fall under Order 21, Rule go, and that, therefore, an application for setting aside the sale on the ground of material irregularity

in the settlement of the sale proclamation could be under See. 47 C. P. C.

In Gnanabaranam Pillai Vs. Rathinam Pillai, , Veeraswami C. J. as he then was, speaking for the Bench had also expressed the view that an

irregularity alleged in the settlement of a sale proclamation will not attract Order 21, Rule 90 C. P. C but will attract only Section 47 C.P.C. that

Section 47 is Wider enough to cover all irregularities, while Order 21, Rule 90 will cover only those irregularities in the publication and conduct of

the sale proclamation, and that the irregularities pointed out before them being in the settlement of the proclamation which precedes its publication

and conduct of the sale will not be covered by Order 21, Rule 90.

The Full Bench of this court in Rajagopala Aiyar v. Ramanuja Chariar (1924)ILR 47Mad 288 had to consider the effect of an omission to

issue a notice under Order 21, Rule 22 on the sale held in execution. The Full Bench took the view that the sale held in execution Without the issue

of notice under Order 21, Rule 22 (2) C. P. C. is a nullity and not merely avoidable as against the person to whom the notice should have been

given, but was not issued, and that it can be set aside u/s 47 of the Code. The Full Bench was of the view that an application to set aside a court

sale not only on the ground of irregularities in the sale, but also on the ground that no notice was given of the application for attachment and sale of

the property, falls within Section 47 C. P. C. In that case an application under Order 21, Rule 90 C. P. C. had been filed to set aside the sale for

want of notice. under Rule 22 of order 21 C. P. C. It was held by the Full Bench that though an application has been made under Rule go of

Order 21, it could be treated as one u/s 47 C. P. C., if the sale is vitiated by illegality and that the period of limitation applicable to such an

application will be Article 181 of the Limitation Act of 1908.

It is true, the above decisions lay down that where the court sales are challenged as invalid for want of notice under Rule 22 or Rule 66 of

order 21 C.P.C, or other illegalities, the challenge has to be considered only u/s 47 and not under 0.21,R.90 C. P. C. Whether Or not that failure

to give notice is an illegality In a matter, which in entirely irrelevant for the present purpose, because it is only certain kinds of irregularities that are

covered by Order 21, Rule 90 C. P. C. and if the C. P. C. omission is of any other kind of irregularity not covered by Order 21, Rule 90 C. P.

C., whether it renders the whole sale a nullity or not, It is not brought within the wording of that rule. Though Section 47 is very wide in Its terms

and in one sense all questions relating to the execution, discharge or satisfaction of the decree that arise between the decree holder and the

judgment-debtor are within the purview of that section, nevertheless that section ought to be so interpreted as not to render redundant the other

provisions contained in the Code, particularly Rules 89, 90 and 91of Order 21, and as between the Judgment-debtor and the decree-holder only

such applications to set aside an auction purchase made by the decree-holder as do not come within the purview of Rules 89, 90 and 91 of Order

21 are within the scope of Section 47 of the Code .Not withstanding the wording of Section 47 which is enough to cover all applications to set

aside sales on the ground either of illegality or of irregularity, its scope has naturally to be restricted so as to give due effect to Order 21, Rule 90

C. P. C. Thus, if the sale is sought to be set aside on the ground of material irregularity in publishing and conducting the sale within Section 47

cannot come into play at all, and the sale could be set aside only by invoking Order 21, Rule 90. But if the sale is claimed to be void for certain

illegality or avoidable on ground of material irregularities not referred to in 0. 21, Rule 90 then Section 47 has to be invoked and in such cases

Order 21, Rule 90, C. P. C. cannot come into Play at all.

Thus the main question to be considered in this case is whether the defect or irregularity in the preparation and settlement of sale proclamation

is an irregularity in publishing and conducting the sale within the meaning of Order 21, Rule 90, C. P. C. even though the appellant has purported to

file an application for setting aside the sale under Sec. 47, as contended by the learned counsel for the appellant. The defects or irregularities

alleged by the respondent in his application for setting aside the sale related mainly to the dawning up of the sale proclamation and they are (1)

certain payments made earlier had not been given credit to while mentioning the amount due; (2) the sale proclamation did not contain neither place

and the date of auction nor did it contain the quantum of taxes payable on the property and (3) the upset price for lot I had been improperly

reduced. These defects have been found to exist by the lower court and the sale has been set aside only on these grounds. In this case, the defects

found proved relate to matters which are to be set out in the sale proclamation and which are covered by Rule 66 of Order 21.

The question whether the noncompliance with the provisions of R. 66 of Order 21, will attract Rule 90 of 0. 21, has come up frequently for

judicial consideration. In Neelu Neithiar V. Subramania Moothan AIR1920 Mad 481, a Division Bench held that the ground of complaint relating

to the violation of Rule 66 can only be considered u/s 47. Relying on this Bench decision, in Ramalingam Pillai Vs. Sankara Iyer (Died) and

Others, , a single Judge of this court held that want of notice under Order 21, Rule 66, C. P. C. is an irregularity preceding the publication and

conduct of the sale and, therefore, tie said irregularity will not be covered by Order 21, Rule 90, C. P. C. and that the words ''publishing or

conducting it occurring in that rule will not cover the proceedings for the preparation and settlement of the sale proclamation.

In Gnanabaranam Pillai Vs. Rathinam Pillai, a Division Bench has also expressed the same view and held that an irregularity in the settlement of

a sale proclamation will not attract Order 21, Rule 90 but will stand attracted only by Section 47, C. P. C. The same view has also been taken by

another Division Bench of this court in Nataraja v. Chandmull Amarchand (1971)1 Mad LJ474 wherein it was held that want of'' notice under

Order 21, Rule 64 or 66 would not, attract Order 21, Rule 90, C. P. C., as the said irregularity was in the settlement of the sale proclamation and

not in publishing and conducting the sale.

A different view, has, however, been expressed in Harindra Nath Mukerji Vs. B. Bhola Nath Sahu and Others wherein the Allahabad High

Court held that the omission to specify the time and place of sale in the sale proclamation, which are matters to be specified in the sale

proclamation under O. 21, Rule 66, C. P. C. will constitute a material irregularity in the conduct of the sale and that the said irregularity would

attract order 21, Rule 90, C.P. C., and not Section 47 of the Code. Somewhat a similar view has also been taken by a Division Bench of this

court in Vasudeva Kavu Patteri v. Mani Naicka, ILR(1953)Mad1143. After discussing the case law relating to the failure to observe one or other

of the rules contained in Order 21 of the Code relating to sales in execution, the court in that case pointed out that the trend of the decisions was

clearly to establish that mere breaches of these rules would not render the sale void but they would only be material irregularities furnishing a

ground for taking action under Order 21, Rule 90 and observed:-

The principle to be deduced from these authorities is that breaches of the Provisions of the CPC relating to execution against Immovable

Properties commencing from their attachment down to their sale should all be dealt with, under Order 21, Rule 29 and not otherwise.

The Bench had held that where a sale was held on a date different from that notified in the sale proclamation, without an order of adjournment and

without a further sale proclamation, it would amount only to an irregularity and not an illegality so as to render the sale void and that the only

remedy open to the party aggrieved was to apply for setting aside under Order 21, Rule 90, C.P. Code.

In Jayarama Aiyar v. Vridhagiri Aiyar (1921)ILR44 Mad35, the proclamation of sale stated, that the sale would take place at Cuddalore

before the Central Nazir. The process server, however ,announced in the village that the sale would be held in the Munsif''s court of Villupuram.

But the sale was, in, fact, held before the Central Nazir, Cuddalore. When the validity of the sale was challenged, a Division Bench of this court

held that it amounted to a violation of a fundamental condition of the sale, namely, the time and place of sale and that consequently the sale was a

nullity and that it was not necessary to prove substantial injury as per Rule 90 of Order 21 C. P. C. The correctness of the said decision has,

however, been doubted by the later Bench of this court In Vasudevan Kavu Patteri, v. Mani Naicka ILR(1953)Mad1143, as is seen from the

following observations:-

The observations that condition as to time and place of the sale are fundamental and their violation would render the sale void rest on the authority

of Bashrutulla v. Umachurn Dutt (1889)ILR16 Cal794 and as already mentioned, that decision has not been followed in later authorities of that

court. No refer was made to the decision In Tassaduk Russel Khan v. Ahmed Hussin (1894) MR 21 Cal 66 (PC) and Gagraimati Toorain v.

Akbar Hussain (19071 ILR 29 An 196 (PC). There is thus considerable ground for dissenting from the reasoning on which the decision in Jayrama

Aiyar v. Vridhagiri Aiyar (19211 mat ""Mad 35 Is based.

In Macnaughten v. Mahabir Pershad Singh (1883) ILR 9 Cal 656 (PC) and Baliram, Singh v. Narasinghdas (1923) 45 Mad LJ 403 (PC) the

Privy Council had held that the failure to state the amount of revenue as required by Order XXI Rule 66 (2) is only a material irregularity and that

there is no reason as to why breaches as regards time and place should be held to be anything more than material irregularities and in so holding 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

an 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.

In Marudanayagam v. Manickavasakam MR (1945) Mad 601 (PC), the Privy council had to consider the effect of failure to observe the

provisions of Order 21, Rule 66 C. P.C. 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 Rule 66 (2) had not been complied with The legal consequence of such default was stated

by Sir John Beaumont as follows:-

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 boon. he was not on the facts found debarred himself of the right to have the sale set aside,""The above decisions of the Privy

Council clearly indicate that any defect in the settlement of the proclamation of sale will be an irregularity in the publication and conduct of the sale

so as to attract Order 21, Rule go C. P. C.

The same view has also been taken by the Supreme Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra

Ghosh and Others, , though the said decisions of the Privy Council have not been specifically referred to there in, in that case there was a court-site

of property In execution of a money decree. At the time of the sale the judgment-debtor did not object to the valuation, though he was served with

notice of the execution petition. After the sale an application for setting aside the sale on the ground of non-compliance of the provisions of Section

35 of the Bengal Money Lenders Act was filed under Order 21, Rule 90 C. P. C. The question arose as to whether the said application is

maintainable Section 35 of the Bengal Money Lenders Act stated that notwithstanding anything contained in any other law for the time being in

force, the proclamation of the Intended sale of property in execution of a decree passed, in respect of a loan shall specify only so much of the

property of the judgment-debtor as the court considers to be saleable at a price sufficient to satisfy the decree and that the property so specified

shall not be sold at a price which is less than the price specified in such proclamation The complaint of the judgment-debtor was that the provision

of Section 35 of the Bengal Money Lenders Act, which is mandatory, had not been complied with at the time of the proclamation of sale that it is

an irregularity in publication and conduct of the sale and, that therefore, it has to be set aside under Order 21, Rule 90, C. P. C. The executing

court held that there was no irregularity or fraud in publishing and conducting the salt and that the sale was not vitiated by reason of the infringement

of the said Section. 35. On appeal the High Court held that though there had not been any substantial injury to the judgment-debtor the provisions

of Sec, 35 of the Act were mandatory and, therefore, the infringement of the said provisions would invalidate the sale. Before the Supreme Court it

was contended by the auction purchaser that the sale held in violation of Section 35 was only irregular and not a nullity and as such, it could be set

aside only in the manner prescribed Order 21, Rule 90, C. P. C. and that, in any event, the judgment-debtor having failed to attend at the drawing

up of the sale proclamation even after due notice the sale could not be set aside at their instance. The Supreme Court- held that the non-

compliance with the-provisions of Sec. 35 of the Bengal Money Lenders Act is a defect or an irregularity in publishing or conducting the sale so as

to attract O. 21, Rule 90 C. P. C. but that the judgment debtor having failed to attend at the drawing up of the sale proclamation and did not

object to the said defect even after the receipt of the notice cannot maintain, such an application for setting aside. The view taken by the Supreme

Court was that Section 35 of the Bengal Money Lenders Act is in effect a statutory addition to O. XXI, Rule 66, C. P. C that the said section

pertains to the field of proclamation, that the two conditions contemplated by Section 35 are also steps to be taken by the executing court in the

matter of publishing and conducting the sale, and that if the sale was held without complying with the said conditions, the remedy available to the

judgment debtor is under O. 21, Rule 90, C. P. C. The Supreme Court in that case referred to with approval the decision o the Division Bench of

the Calcutta High Court in Manindra Chandra v. Jagadish Chandra (1946) 50 Cal WN 266, which dealt with the question whether a sale held in

non-compliance with Sec. 35 of the Bengal Money Lenders Act could be set aside under O. 21, Rule 90 wherein the Bench has observed as

follows:-

It (Sec. 35 of the Act) is a provision relating to the contents of the sale Proclamation and its effect, to my mind, is to amend or supplement O. 21,

Rule 66 (2) (a) which directs the court to specify in the sale proclamation ''the property to be sold. Any objection regarding noncompliance with

Section 35 in specifying the property to be sold is, in my view, a defect in the sale proclamation within the meaning of the second proviso to O. 21,

Rule 90, C. P.C.

A decision of another Division Bench of the Calcutta High Court in Maniruddin Ahmed v. Umprasanna (1960)64Cal WN20 has also been

approved. The said two decisions of the Calcutta High Court and the decision of the Supreme Court which approved the view taken in the said

two Calcutta cases, clearly Proceed on the basis that a defect or irregularity In the sale proclamation will be an irregularity in publishing and

conducting the sale and that will attract O. 21, R. 90, C. P. C. In view of the said clear pronouncement of the Supreme Court, the earlier decisions

of this court in Ramalingam Pillai Vs. Sankara Iyer (Died) and Others, , Nataraja v. Chandmull Amarchand (1971) 1 Mad LJ 474 and

Gnanabaranam Pillai Vs. Rathinam Pillai, , in so far as they hold that a defect or irregularity in the sale proclamation would not fall under Order 21

Rule 90, C. P. C. as that irregularity precedes the stage of publication and the conduct of the sale cannot be held to be good law. According to the

Supreme Court, though the settlement of the sale proclamation preceded the publication and conduct of the sale, in so far as the irregularity in the

settlement of sale proclamation relates to the essential steps to be taken by the court in the matter of publishing and conducting the sale, it has to be

taken as an irregularity in the publication itself.

We have to, therefore, hold in this case that the irregularity and the defects found by the trial court will attract only Order. 21 Rule 90 C. P. C.

as the defects and irregularity are in the preparation and settlement of the sale proclamation, and not, under S. 47 As the sale in this case'' has been

impeached only on grounds which attract Order 21, Rule 90, the judgment-debtor cannot escape the period of limitation by framing his application

as one u/s 47. The substance of the application must be considered in order to determine whether the application is one which falls u/s 47 or under

O. 21, R. W. Though the judgment-debtor had filed the application to set aside the sale u/s 47, it should be treated as an application only under O.

21, Rule 90, C. P. C. on the facts of the case in this case, the appellant decree-holder has contended before the .executing court that an

application for setting aside the sale under O. 21, R.-90 C. P. C., is barred. This question hat not been gone into by that court, as it proceeded I

on the basis that the application for setting aside the sale is no u/s 47. Further, the Judgment-debtor has to establish a substantial injury by reason

of the alleged irregularities proved in. this case. The question as to whether the judgment-debtor has suffered any substantial injury as a result of the

alleged irregularity has not also been gone into by the executing Court, as it proceeded to .dispose of the application for setting aside the sale on

the basis that it is one u/s 47. Now that we have held that the application for setting aside is to be treated as one under O. 21, R. 90 C. P. Code,

the matter has to go back to the executing court for fresh disposal in the light of our judgment.

All the appeals have, therefore, to be allowed and the matters remitted to the executing court for fresh disposal, as indicated above. The

appellant is entitled to his costs (Rs. 500) in C. M. A 386 of 1975 from the respondents. There will be no orders as to costs in the other appeals.

Appeals allowed.