Jayarama Ayyar vs Vridhagiri Ayyar and Others

Oldfield, J.—These proceedings were marked in the lower Court by grave irregularities; find and it is the more necessary that in correcting.

these irregularities, we should be careful to do nothing which would inflict unfair prejudice on either party.

The sale, which is the subject of these proceedings, was according to the proclamation to be held by the Central Nazir of the Cuddalore District

Court on 10th July 1919 and it was held accordingly. On the evening of that day the judgment-debtor represented to the Court that bidders had

not come and that the sale was open to objection on other grounds, with which we are not concerned. Afterwards, and this was material in

connexion with the representation that bidders had not come, he brought to the notice of the Nazir that the process-server charged with the. duty

of making the proclamation in the village had proclaimed that the sale would be held not by the Central Nazir at Cudda lore but by the District

Munsif S Court of Villupuram. This communication from the judgment-debtor to the Nazir was brought to the notice of the Court on the next day,

11th July 1919, and I am constrained to express my disapproval of the Court''s method of doing business by accepting representation of this kind

made by a subordinate officer. Such complaints should be considered by the Court only when they are made to it in open Court in the usual way.

The Court then, however, at once cancelled the sale of the three items of property which had boon sold the previous day, of which the second

and third items, those purchased by the appellant are the subjects of the present appeal. It also directed the refund to the purchasers of their

deposits and lastly it ordered that a fresh sale should be held on 20th August on a fresh proclamation. It does not appear that any communication

of these orders was made, at all events at the time, to the present appellant. For, on 24th July 1919, he paid into Court the remainder of the

purchase money due from him, and on 12th August 1919 applied for confirmation of sale and the grant of sale certificate; and again this

cancellation of the sale was obviously an irregularity of considerable moment.

On 29th July 1919, the Court had obtained a draft proclamation, apparently from the decree-holder, and altered the date fixed for sale to 4th

September 1919. Later, it may be said that as regards items other than 2 and 3, to which I shall return, the Court passed an order that the original

sale should be continued as it was the Court''s own fault that it was not held properly and as, properly speaking, there was no sale; and later on the

sale was stopped by an order of this Court, dated (5th November 1919.

To go back to items 2 and 3: on the purchaser''s application for confirmation of sale and sale certificate of 12th August 1919 notice was issued

to the decree-holder, who contended, that the sale should be set aside, that a resale should be ordered, and that the purchaser''s petition should be

dismissed; and in these proceedings the order now under appeal was passed.

It is material that there has in this case boon an order (now appealed against) which was passed after notice to all concerned, and which was

passed after every opportunity had been given for the production of evidence. In these circumstances, greatly as we must regret the irregular

manner in which the then District Judge, Mr. Edgington, passed the order by which the sale was in the first instance set aside, we think we can

disregard that order and deal with the matter simply with reference to what had happened afterwards in connexion with the application of 12th

August 1919. As I have pointed out, there was no prejudice to the appellant, the purchaser, or to any one else owing to any omission of the Court

to hear them or to take evidence. These proceedings were perfectly regular and we therefore examine the order now under appeal simply on its 1

merits and with out regard-to what had happened at the earlier stage.

The order under appeal purports to be passed under Order XXI, Rule 90, on the ground of a material irregularity in publishing the sale

proclamation. We have been shown no valid objection to the lower Court''s finding that the sale proclamation, as it was framed by the Court, was

not published in the village. The process-server owing to carelessness,"" or some other reason, substituted for the soiling officer and place of sale

fixed by the Court a different selling officer and a different place of sale. Besides finding that this occurred and that it was an irregularity, the lower

Court has also, as Rule 90 requires, found that the plaintiff decree-holder sustained substantial injury by reason of that irregularity. We do not think

it necessary to follow the lower Court in that part of its order, because we do not think that Rule 90 is applicable) at all. The mistake, so to

describe it, made by the process-server resulted not in any irregularity, but in an illegality which invalidated the proceedings.

Mr. Krishnaswami Ayyar, on behalf of the appellant, has referred to a number of authorities dealing with the facts in particular cases, which

were or were not held to constitute irregularities or illegalities. It is unnecessary to go through those cases, because the decision in each rested on

the facts in it, and because it does not appear that any general rule for distinguishing between an irregularity and an illegality has ever been laid

down. It would appear, in fact, that the distinction is 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. This view that the question is one of

degree, is implied, it seems to me, in the judgment of Mr. Justice Heaton in Krishnaji v. Bomanji (1909) 11 Bom. L.R., 380, and although I am

doubtful as to the correctness of the main conclusion reached by the learned judges in that case, i. avail myself of the support, which the view I

take receives, from Mr. Justice H-EATON''S observation that although the facts before him did not constitute such an illegality as would render

the sale in question void, yet he wished at the same time to be clearly understood not to ignore that in other cases there might be other

circumstances which, combined with similar ones, would amount to an illegality such as the Court could act on.

The nearest case perhaps to the facts before us is.Basharutulla v. Uma Churn Dutt (1889)) I.L.R., 16 Calc., 794. There, the property that had

been advertised for a particular date was sold on that date, but at an earlier hour than that stated in the proclamation, and the Court., said that in

those circumstances it seemed to it that there was no sale within the meaning of the Code and that the proclamation of the time and place and. the

holding of the sale at such time, and place advertised were conditions precedent to is being a sale under the Code at all, It appeared to, the Court

that the property never had been sold under the Code, and consequently the plaintiff was entitled to a declaration that whatever took place when

the property was put up for sale had no effect as against him. It seems to me that if, when a proclamation was made any of the usual and effective

methods prescribed or permitted by the Code for its publication has been misleading as to details of the matter proclaimed and has been such as

not merely not to give information to possible bidders, but to divert them to a place where the sale is not to be held, the result must be in the words

of Basharutulla v. Uma Churn Dutt I.L.R., (1889)) Calc., 794 that the property had never been sold under the Code at all.

In these circumstances the order of the lower Court, must be confirmed and the appeal dismissed. As regards the question of costs we bear in

mind, that the decree-holder and the judgment-debtor were in fact present during the sale, and apparently it was not until the sale was concluded

that the latter made any objection to the manner in which, it had been proclaimed or conducted. There is then the fact that throughout the

proceedings, apparently without objection from the decree-holder who ordinarily would have their direction, have been carried on in the highly

irregular manner to which we have referred. In these circumstances we think that we are justified in making no order as to costs in this Court.

Seshagiri Ayyar, J.

I entirely agree. The facts have been fully stated by my learned brother. The question for consideration is whether the Court sale should, be

regarded as having been irregularity conducted or whether it was illegal. As this point was argued with some insistence by Mr. Krishnaswami

Ayyar, I propose to say a few words on it.

The Code itself gives some indication as to when a sale can be regarded as irregular and when illegal. ln Order XXI, Rule 90, which permits an

aggrieved party to come to Court to set aside a sale, the language employed is that it may be set aside on the ground of material irregularity or

fraud in publishing or conducting it. Where there is no publication or conduct of the sale, it is, I think, a right inference to draw from Rule 90 that

the sale should be regarded as illegal. In the present case, on the facts which my learned brother has fully stated, my conclusion is that there has

been no publication at all. If a sale is held at a place to which the proclamation at the village makes no reference, and per contra invites bidders to

go to another place, I am prepared to hold that there was no proclamation leading up to the sale. Mr. Krishnaswami Ayyar drew our attention to

cases where there has been no beating of a drum and it was held that such a mistake should be regarded only as an irregularity. As Mr.

Chandrasekara Ayyar pointed out, under the rules it is not obligatory to boat the drum and the proclamation may be made in any other manner

which the people of the village are accustomed to hear. Therefore, the decision in Trimbak Ravji v. Nana I.L.R., (1886) 10 Bom., 504 , that the

omission to beat the drum is only an irregularity, does not affect the present case.

The present case, I agree, with my learned brother, is practically covered, by the authority of Basharutulla v. Uma Churn Dutt I.L.R., (1889)

Cal., 794 . In that case the question was whether if a sale was held at an hour anterior to the one mentioned in the proclamation the sale was

irregularly conducted or whether it was illegally held. The learned Judges came to the conclusion that there was a violation of the fundamental

conditions of the sale, namely, the time of sale, and that consequently the sale was a nullity. The same argument can be used with reference to a

sale held at a place different from the one mentioned in the proclamation.

I concede that it is not easy to draw the line between an irregularity and an illegality, but I am clear that where a substantial provision of law has

boon violated, and that has the effect of not attracting persons who could be expected to be present for the purpose of bidding at the sale, the sale

should be regarded as having been illegally conducted. As regards the decision chiefly relied on by Mr. Krishnaswami Ayyar, namely, Krishnaji v.

Bomanji (1909) 1l BOM., L.R., : 380, I agree with my learned brother in dissenting from the conclusion reached in that case. Mr. Justice

Chandavarkar, J., bases his conclusion mainly on Arunachellam v. Arunachullam I.L.R., (1889) Mad., 19. In the latter case, the Judicial

Committee had before it a case of misdescription of property, and their Lordships were of opinion that a mere description would be only an

irregularity. Their Lordships had stress on the fact that the judgment-debtor was throughout present and acquiesced in the. irregularity, and that

when he found that there was no other means of vacating the order he resorted to this expedient of setting aside the sale. The principle on which

their Lordships rested their decision was estoppel. There is no such question in this case. I do not think that case is an authority for the broad

proposition which Chandravarkar, J., has deduced in Krishnaji v. Bomanji (1909) 1l BOM., L.R., : 380.

In Nana Kumar Roy v. Golam Chunder Dey I.L.R., (1891) Calc., 422 (F.B.), the proclamation was in the Collector''s office. Mr.

Krishnaswami Ayyar argued that as the proclamation in the Court or in the Collector''s office and the proclamation in the village are all mentioned

together in the Code no distinction should be drawn between one mode of proclamation and another. I am unable to agree with him. The failure to

proclaim in the Collector''s office will not have as serious an effect on bidders as the failure to proclaim in the village. It is in the latter place that

people who are likely to purchase will gather. That is the most important part of the procedure relating to proclamation and, if it is violated, such a

violation does not stand upon the same footing as the failure to affix a copy of the proclamation in the Collector''s office.

There is only one other decision to which reference may be made, and that is Rang Lal Singh v. Ravaneshwar Pershad Singh I.L.R., (1912)

Calc., 26 (P.C.). In that case, the Judicial Committee had to consider a case of sale which was held some days after the date mentioned in the

proclamation. The facts of that case make it clear that that was a case of mere irregularity. The sale itself was being adjourned from day to day and

ultimately it was fixed for the day on which the usual Court sales were held. That was the 13th July, On 13th July the presiding officer happened

''to be absent on leave and the sale was held on the day when he returned. The people in the locality were apparently aware that in consequence of

the absence of the presiding officer the monthly sales would not be held on the usual day but would be held immediately on the return of the

presiding officer. On those facts the Judicial Committee came to the conclusion that there was only an irregularity, and that it would not vitiate the

sale unless substantial loss was proved. That case is no authority for this case, where there was no proclamation relating to the place where the sale

is actually held.

For these reasons I agree that the order of Mr. Stodart is right and that this appeal must be dismissed.