Kalyani Achi vs K.N.S.P.R.M. Ramanatham Chettiar and Others

Govinda Menon, J.—These arise out of the order of the Subordinate Judge of Sivaganga in E. P. No. 100 of 1949 in O.S. No. 53 of 1949

dated 16-7-1952. It is a matter of some doubt whether the order in question is one that comes directly under the provisions of Section 47, C.

P.C.; but in any event there is the civil revision petition filed alternatively and if we are convinced that the learned Judge has not exercised the

jurisdiction vested in him by law, then we have to set it aside.

In execution of the decree in O.S. No. 53 of 1949 in the Sub-Court, Sivaganga, three items of properties were attached before judgment and

they were proclaimed for sale to be held on 17-6-1952. The order of the Court to the officer conducting the sale was to the effect that he should

sell in auction sufficient portions of the properties attached before judgment on 17-6-1952 and that he should certify the manner in which the

auction was held and if none was held, the reason lor the same and return the warrant on or before 23-6-1952. The sale warrant is therefore clear

that the sale was to be held on 17-6-1952 and the warrant has to be returned to the Court on or before 23-6-1952. According to the details

contained in the sale list it is found that the sale commenced on 17-6-1952. From 16-6-1952, the Subordinate Judge was on casual leave and he

rejoined duty only on 25-6-1952. During that period of casual leave there were three holidays, viz., 21st, 22nd and 24th Juno 1952. The sale list

shows that the sale was commenced on 17-6-1952, was continued on 18-6-1952. 19-6-1952.. 20-6-1952 and 23-6-1952 and on 25-6-1952

there were two bidders for items 1 and 2 and the same were sold to one Unnamalai Achi represented by her advocate Mr. A. Sreenivasa Iyengar

for a sum of Rs. 7500. For the third item also there were only two bidders and that item was also purchased by Unnamalai Achi represented by

her advocate for a sum of Rs. 750.

On 25-6-1952 representation was made before the Judge by the decree-holder that the sale was a nullity as it was being continued while the

Subordinate Judge was on casual leave and under the directions of the Court the decree-holder filed a memo of objections on 30-6-1952. Though

in the memo it was stated that actually no sale or bidding took place on any day prior to 25th June, the finding of the learned Judge now is that the

sale was cried on the days on which it is said to have been continued according to the sale list and that it was only on 25-6-1952 that the two

bidders bid for the property which was finally knocked down for the highest bidder. The decree-holder stated before the learned Judge that he and

his counsel were misled by representation made to the effect that because the Judge was on casual lea_ve the sale would not take place and such

being the case there was no one to bid on his behalf on those days. His further contention was that actually there was no sale and that the sale list

submitted to the Court containing representations to the effect that on the previous days the sale was continued was a faked up affair. But that need

not be gone into now in view of the fact that no evidence has been let in to show that the contents of the bidders'' list are incorrect. We have

therefore to proceed on the basis that the contents of the bidders'' list cannot be disputed. There is the further fact that the E.P. which had been

adjourned to 23-6-1952 was further put off to 28-6-1952 by the Chief Ministerial Officer as the Judge was on casual leave.

The learned Judge in the Court below was of opinion that when a sale is continued from day to day, no fresh proclamation is necessary as there

is no question of adjournment of sale and since the selling officer cried the sale every day, the provisions of the CPC and the Civil Rules of Practice

have been complied with and such being the case the completion of the sale on 25-6-1952 cannot be taken objection to at all. Under Order 21,

Rule 69, C.P.C. the Court may, in its discretion, adjourn any sale to a specified day and hour and the officer conducting such sale may, in his

discretion, adjourn the sale, recording his reasons for such adjournment. Provided the where the sale is made in, or within the precincts of, the

court house, no such adjournment shall be made without the leave of the Court. What is therefore contended on behalf of the decree-holder is that

since the sale was to have taken place on 17-6-1952 within the precincts of the court house, any adjournment of it from that date would be ''ultra

vires'' and illegal if the Court had not given permission for that purpose; and when the sale is completed, the person appointed to sell the proserty

shall file in Court his report of the same in form No. 71 contained in the Civil Rules of Practice. As stated already, the learned Judge held that when

the sale is cried every day and was continued from day to day, there was no adjournment of the sale as contemplated in the proviso to Order 21,

Rule 69, C.P.C. and therefore the sale is valid.

Mr. Gopalaswami Aiyangar for the appellant disputed the correctness of the decision of the learned Judge and he reaffirmed the objection taken

in the Court below that during the intervening days there was in fact ""O sale or crying. It is difficult for the learned counsel to substantiate this

argument. We have to take it that judicial and official acts are properly, done and therefore when the bidders'' list and'' the sale list show that on all

these days the Judge was on casual leave and the sale was continued and would continue the next day, these statements should be taken as

correct. On the facts as found, what happened is that the sale was cried on 17th, 18th, 19th, 20th and 23rd June, but there were no bidders on

those days. 21st, 22nd and 24th were holidays and the final bidding was only on 25-6-1952, when only two persons bid. How far the sale held in

this manner is correct is the point to be decided.

Mr. A. Sundaram Aiyar for the respondents invited our attention to a number of cases to the effect that the practice of continuing the sale is not

prohibited if the continuation is ''de die in diem''. The sale conducted ''de die in diem'' for a period longer than seven days is neither illegal nor

irregular; and to keep open the sale for a long time is a very common practice and having regard to the local conditions, it cannot be said to be not

a beneficial one; to this effect is the decision in --''Pir Mohamad Rowther v. Mayandi Chettiar,'' 1910 M WN 684 (A). Learned counsel also

relied upon -- ''Subbanna v. Satyanarayanamurti'', AIR 1943 Mad 739 (E) and -- ''Venkataramana Aiyar v. Natesa Pillai'', 1944 2 MLJ 352 (C).

In the former case the learned Judges . observed that if a sale is continued from day to day, it is not a case of an adjourned sale at all and in such a

case the sale might bo continued for .any length of time if the circumstances of the case warrant it. In the latter case, their Lordships of the Judicial

Committee had to consider the case of continuance of the sale, but on the facts of the case the Privy Council came to the conclusion that on

account of the agreement between the parties and the order of the Court there was no material Irregularity in the proceedings. This is not a case

where there was any continuance of the sale with the Court''s permission. But the difficulty in the present case arises from the fact that the sale

warrant directs the officer conducting the sale to hold it on 17-6-1952. Therefore ordinarily he would have had no right to adjourn the sale without

the leave of the Court under the proviso to Order 21, Rule 69, C. P.C. But in the circumstances of the case, as laid down in the decisions already

referred to, there was no adjournment but a continuation of the sale. It might reasonably be said that such a continuation is not tantamount to any

adjournment. But the sale warrant contains a positive direction that the same should be returned on or before 23-6-1952. Granting that the

continuation of the sale on 18th, 19th and 20th would not amount to adjournment, still it was incumbent upon the selling officer to return the

warrant on or before 23-6-1952. On the evening of 22-6-1952 the selling officer becomes ''functus officio'' so far as the sale proceedings are

concerned and if the sale is not complete on the evening of 22nd he has to give his reasons and make a statement that the same has not been

finished and return the warrant on the 23rd. A proper interpretation Of the sale warrant is that it is not open, to the selling officer to hold the sale on

any day subsequent to 22-6-1952. His power to sell the same gets terminated by efflux ofI time on 22-6-1952. In such circumstances the sale

held on 25-6-1952 is without jurisdiction.

But it is contended by the respondents'' counsel that the Court should be deemed to have impliedly extended the period from 23rd June by not

objecting to it when the attention of the learned Judge was invited to the fact on 25-6-1952. Order 21, Rule 65, C. P.C. lays down that the sale

shall be held by the person appointed by public auction in the manner prescribed. For finding out what the prescribed manner is we have to refer to

the Civil Rules of Practice. Nowhere is it stated that when the sale warrant prescribes a period for the return, the selling officer can continue the

sale without the extension being granted by the Court. The manner prescribed in this case is that the sate has to be held on 17th June and the

warrant returned with the necessary particulars on or before 23rd June. This condition not having been complied with, it is difficult to hold that the

sale has been held in the prescribed manner.

How far there had been ratification in this case by the Court has next to be considered. The learned Judge nowhere says that on 25th June

before the sale was completed any permission was taken from him to conduct the sale. We have therefore to take it that since 24th June was a

holiday, on 25th June, as on previous occasions, the sale was cried and when two bidders bid, the sale was completed and it was knocked down

to the highest bidder. There is nothing to show that the Judge authorised the selling officer to conduct the sale on 25th June. Relying upon Section

196, Contract Act which lays down that where an act is done by one person on behalf of another, but without his knowledge or authority of that

person, he may elect to ratify or to disown such acts, and if he ratifies them, the same effects will follow as if they had been ""performed by his

authority, the learned counsel contends that in this case since subsequent to 25th June there was no repudiation by the learned Judge about the

action of the selling officer, it must be deemed that he has ratified the sale. For one thing Section 196, Contract Act cannot have any application to

a matter like this. A selling officer is not an agent of the Court, as is contemplated in the Contract Act. He is at best a delegate of the Court and a

delegate can function only within the four corners of the power conferred upon him. Any action of an officer of Court empowered to act under an

authority from the Court which is in excess of such authority is illegal and ''ultra vires'' and if his act is illegal and ''ultra vires'' it cannot subsequently

be ratified. Our attention was drawn to two decisions, viz., -- Kandalam Rajagopalacharyulu and Others Vs. The Secretary of State for India in

Council and Others, and -- G. Narasimulu and Others Vs. P. Basava Sankaram and Others, . But both these cases have no application to the

question now under consideration. Where in the absence of an order by the Court in Insolvency vesting the property of an insolvent in the Official

Receiver, the property was sold by the Official Receiver, but subsequently the Court, on being appraised of the fact passed a vesting order, such

an under is sufficient ratification of the Receiver''s act so as to pass good title to the alienee. This is the principle decided in G. Narasimulu and

Others Vs. P. Basava Sankaram and Others, . We find it difficult to apply the- observations in that case to the controversy now before us. The

Courts there have proceeded on the basis that the Official Receiver is an agent and therefore subsequent ratification of the Official Receiver''s act

would be sufficient to make the transaction valid. Observations at pages 189 and 190 of Kandalam Rajagopalacharyulu and Others Vs. The

Secretary of State for India in Council and Others, have also been referred to by learned counsel. Even here the question was one of principal and

agent.

We are not satisfied that the selling officer who is the Deputy Nazir of the Court is an agent of the Court so as to bring his actions within the

confines of the principles laid down in the Contract Act. The learned Judge has not stated anywhere that the conduct of the sale on 25th June has

in any way been ratified by him. In fact the mandatory provision of the sale warrant to the effect that the same should be returned on or before

23rd June has been practically ignored in the discussion by the Court below. As we are of opinion that the act of selling the property, when the

selling officer has no power to do so, is one without jurisdiction, the sale is null and void. The order of the lower Court is therefore set aside and

the sale will be ordered to be held afresh. The petitioner in the civil revision petition will have her costs in this Court.