Nabeesa Umma vs Kayya Umma

M.M. Pareed Pillay, J.—Revision Petitioner is the judgment debtor in O.S. 699 of 1983 of the Principal Munsiff''s Court, Ernakulara. The Respondent (decree holder) filed E.P. 516 of 1987 for realisation of the decree amount. The properties were sold in execution. Revision Petitioner filed E.A. 959 of 1989 under Order 21 Rule 90 CPC to set aside the sale. The execution application was dismissed by the executing court on the ground of limitation.

Revision Petitioner contended inter alia that the sale was conducted in violation of Order 21 Rule 69(2) of the CPC and therefore on that sole score the executing court ought to have allowed the execution application. Learned Counsel for the Respondent pointed out that there is no material before the court to substantiate the contention of the revision Petitioner that the sale is liable to be set aside under Order 21 Rule 90 CPC Counsel submitted that even if there was any violation of Order 21 Rule 69(2) it amounts to a mere irregularity and in the absence of proof of substantial injury the execution application cannot be allowed.

Under Order 21 Rule 90 it is open to any person, whose interests are affected by the sale, to make application before the executing court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. As the revision Petitioner has filed the execution application under Order 21 Rule 90 it is for her to establish that there was material irregularity or fraud in publishing or conducting the sale and by reason thereof she had sustained substantial injury. A reading of Order 21 Rule 90 would make it clear that it is incumbent upon her to establish not only material irregularity or fraud in publishing or conducting the sale but also that she has sustained substantial injury. In other words, mere irregularity or fraud will not entitle the court to set aside a sale, if there is no proof of substantial injury caused thereby. Material irregularities would not by itself invalidate a sale. It must be established that the irregularities committed in the conduct of the sale have the effect of avoiding the sale. Order 21 Rule 90(2) provides that no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud Thus, it is incumbent upon the revision Petitioner to prove that there was material irregularity or fraud in publishing or conducting the sale and consequently she had sustained substantial injury.

Contention of the revision Petitioner is that sale was conducted without fresh proclamation and this amounts to a material irregularity in conducting the sale and this has resulted in substantial injury to her. It is argued that as there was no fresh sale proclamation the price realised at the sale was inadequate. Such a contention cannot be advanced by the revision Petitioner as the omission to issue a proclamation as required by Order 21 Rule 69(2) amounts only to a mere irregularity and as there is nothing to show that she sustained substantial injury by reason of such irregularity.

Order 21 Rule 69(2) provides that if a sale is adjourned under Sub-rule (1) for a longer period than 30 days, a fresh proclamation under Rule 67 shall be made, unless judgment-debtor consents to waive it. The settled legal position is that the omission to issue a proclamation as required by Order 21 Rule 69(2) amounts to a mere irregularity and a sale will not be set aside in the absence of proof of substantial injury. In Jatindra Mohan Sarkar Vs. Mahipal Nayek and Others, the Calcutta High Court held thus:

In our judgment, however, non-issue of a sale proclamation when the law requires the publication of a fresh sale proclamation stands on the same footing as the non-service or suppression of service of a sale proclamation in the matter of the reversal of a sale. They would be material irregularities and would not affect the jurisdiction of the executing court to hold the sale. The adjournment of a sale beyond a month without publishing a new sale proclamation would stand on the same footing.

To invoke Order 21 Rule 90 Petitioner has necessarily to establish that there was material irregularity or fraud in publishing or conducting the sale and as a result of it she sustained substantial injury. Revision Petitioner could not establish that she had sustained substantial injury as a result of the omission to issue a fresh sale proclamation. In this context it is useful to refer to Pathummal Kunju v. Sanku Panicker 1956 KLT 954, where a Division Bench of this Court held that the omission to issue a proclamation as required by Rule 69(2) of Order 21 CPC amounts to a mere irregularity and a sale will not be set aside in the absence of proof of substantial injury. Failure to comply with Order 21 Rule 69(2) cannot, therefore, be considered as a material irregularity in conducting the sale. At any rate, in the absence of any proof of substantial injury caused to the revision Petitioner, sale cannot be set aside merely on the ground of failure to comply with Order 21 Rule 69(2). Revision Petitioner has not established sufficient grounds to allow the execution application.

The executing court was justified in holding that the execution application is barred by limitation. The order of the executing court shows that on 27th June 1989 the properties were ordered to be proclaimed and sold on 2nd August 1989 and as there were no bidders on that day it was again ordered to be sold on 28th August 1990 on the same proclamation and on that day the properties were sold. It is long after the expiry of two months that the execution application was filed by the revision Petitioner. Article 127 of the Limitation Act fixes the period of limitation as 30 days from the date of sale. The execution application has been filed beyond the period of limitation. The executing court was justified in rejecting the execution application on the ground that it is time barred.

There is no merit in the Civil Revision Petition. C.R.P. is dismissed with no order as to costs.