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Judgment
Chhatpar, J.—The above two appeals arise from the same execution matter. Respondent 1 obtained a mortgage decree for Rs. 11,000/-
and odd against the Appellant and applied for execution by sale of the mortgaged property. The sale proclamation was issued, and it is agreed by
the learned Advocates appearing before me that the sale proclamation did not contain the date of sale. The learned Civil Judge in his order in
appeal No. 67/52 also states that the date and time of sale were not mentioned in the sale proclamation. The auction was held at the precincts of
the property which is situated in the town of Surendranagar on 25-4-52 and certain bids were given. These bids were to be accepted in
accordance with the usual practice before the Court on 1-5-52. It appears that some persons had come at the auction on 25-4-52 probably as the
date was notified by beat of drum in the city of Surendranagar. The highest bid received was Rs. 11,000/- which was confirmed by the Court on
1-5-52. The Appellant-judgment-debtor applied for setting aside the sale. She alleged that she was materially prejudiced as the property had
fetched considerably less than its market value which according to her was about Rs. 20,000/-. The learned Civil Judge went into the evidence and
while holding that there was material irregularity in view of the fact that the date of the sale was not notified in the sale proclamation held that there
was no substantial injury, although according to his opinion the value of the property would be in the neighbourhood of Rs. 12,000/-. He
accordingly dismissed the application for setting aside the sale. The judgment-debtor has now preferred the present appeal No. 67 of 1952 from
the order of dismissal of the application and prays for setting aside the sale. She has also filed the appeal No. 72 of 1952 for setting aside the sale
on the ground that the purchase price was not paid, within the prescribed time.
I have heard the learned advocates for the parties and I am clearly of the opinion that the sale must be set aside. Order 21, Rule 66 enjoins on
the Courts to mention in the sale proclamation the time and place of the sale. This is a mandatory provision of law, the breach of which would
make the sale liable to be set aside under Order 21, Rule 90, if not altogether void as held by several authorities. In - ''Pannalal Singhai v. Firm
Hasan Dada AIR 1939 Nag 258, remarks at page 259(A), the Nagpur High Court observed:
There is no doubt authority for the view that the holding of sale before the time fixed is not merely an irregularity but an illegality which in itself
renders the sale void. It was so held in - ''Basharutulla v. Uma Churn Dutt'' 16 Cal 794 (B), which was followed in - ''Mohendro Narain v. Gopal
Mondul 17 Cal 769 (C); see also - ''Bakhsh Nand Kishore v. Malak Chand 7 All 289 (D). In Jayarama v. Vridhagiri AIR 1921 MP 583 at p.
584 (E) it was said that the difference between an irregularity and an illegality was one of degree, and that an irregularity of so serious a nature as
to render impossible the publicity which affords one main security for the fairness of public sales must be deemed to be an illegality. Now when
sale is held two or three hours before the advertised time it is more than likely that intending bidders relying on the proclamation would not turn up
until too late. It is said that in the present case there was beat of drum in the village just before the sale was actually held. Still that would not make
any difference to intending bidders from outside; and even in the village, the beat of drum and its import may not have been appreciated by all. I,
therefore, think that there was a good cause for the Court to set aside the sale on its own initiative. In any case the matter can be dealt with under
order 21, Rule 90, Code of Civil Procedure, as the illegality is at least a material irregularity.
With respect I agree with the views of the learned Judge of the Nagpur High Court. In the present case there is the additional factor that the
learned Judge himself opined that the value of the property would be about Rs. 12,000/- and on this finding alone there would be substantial
prejudice as the property was in fact sold at Rs. 11,000/-.
Mr. C.C. Shah the learned advocate for the decree-holder has referred me to the Privy Council case of - AIR 1945 178 (Privy Council) which
says:
In order to set aside a Sale under Order 21, Rule 90, it should be proved that there was material irregularity or fraud in publishing or conducting
the sale, and that the applicant had sustained substantial injury by reason of such irregularity or fraud.
That was a case where the irregularity complained of was failure to mention in the sale proclamation the revenue assessed on the properties as
required by Order 21, Rule 66(2)(b), Code of Civil Procedure, and it was held that although the omission to state the revenue was a material
irregularity within the meaning of the rule, the rule could have no application to a case like the one before their Lordships in which the property sold
was a portion of an estate upon which no separate revenue was fixed, and therefore their Lordships agreed with the opinion of the High Court in
holding that in the circumstances of that case the failure of the decree-holder to state the revenue payable on the lands could not be treated as a
material irregularity. Therefore the question whether there was no substantial injury by reason of this irregularity did not arise for consideration. The
next irregularity alleged in that case was the omission to affix the sale proclamation in the Collector''s office as prescribed in Order 21, Rule 54
read with Rule 67, CPC Their Lordships observed that ordinarily the omission to affix the proclamation in the Collector''s office would indeed be a
material irregularity as it was a non-compliance with the procedure prescribed by law, but in the circumstances of that case the breach of the rule
could hardly be called a material irregularity. It was stated in the judgment of the High Court that the Collector''s office and the District Judge''s
Court were situated in the same compound and it was not denied that a copy of the proclamation was duly affixed in the District Judge''s Court.
Further, evidence showed that the sale was widely advertised in various daily papers. The object of the rule requiring affixture of the sale
proclamation in the Collector''s office was to give sufficient publicity to the sale; where such publicity had been given to the sale as in that case, the
irregularity complained of could hardly amount to a material irregularity. Even assuming that the omission amounted to a material irregularity, it had
not been proved by evidence direct or circumstantial that the inadequate price which the properties fetched at the sale as found by the subordinate
Judge, was by reason of that irregularity. The present case stands on a different footing from the case before the Privy Council. I am, therefore, of
the opinion that this case does not help the decree-holder.
The next case relied upon by Mr. C.C. Shah is of - AIR 1943 204 (Oudh) , wherein the irregularity complained of was failure to comply with
provisions of Order 21, Rule 66(2)(e). This case also does not help as the sale was actually set aside on the ground of material irregularity for non-
compliance with the provisions of Order 21, Rule 66(2)(e) as also failure to give notice of time of an adjourned sale. Their Lordships remarked:
We hold, therefore, that the breach of the statutory obligation imposed by Rule 69(1) of Order 21, Code of Civil Procedure, amounted to a
material irregularity in the conduct of the sale. Having held that there was a material irregularity both in the publication and the conduct of the sale, it
seems to us to follow from the circumstances mentioned above that Substantial injury resulted to the Appellant as a result of this material
irregularity. The sale, therefore, must be set aside.
The third case relied upon by Mr. C.C. Shah is of - Pt. Chandra Sekhar Dhar Misra Vs. Bhagwan Das and Others, wherein it was held that
where a number of properties were sold in execution of a decree mere inadequacy of price with regard to one property was not a ground for
setting aside the sale under Order 21, Rule 90, CPC Some illegality or irregularity in the publication and conduct of sale which had resulted in the
property being sold at an inadequate price must be established. This case also does not help, and has, hardly any relevancy so far as the facts of
the present case are concerned.
I am, therefore, clearly of the opinion that there was in any case material irregularity in publishing and conducting the sale, which has caused
substantial injury to the judgment debtor even if the sale is not entirely void. I, therefore, allow the appeal No. 67 of 1952, set aside the order of
the lower Court and set aside the sale. The Appellant will have his costs from the decree holder of this Court and of the lower Court. In view of
this decision, Mr. M.O. Shah does not wish to proceed with the appeal No. 72 of 1952, which is accordingly dismissed with no order as to costs.