Natesa Pillai and Others vs Venkatarama Aiyar and Another

Stodart, J.—The appellants are the judgment-debtors. They applied to the Court below under Order 21, Rule 90 to set aside a Court sale

of their property held on 12th August, 1935, on the ground that there was irregularity in publishing and. conducting it, which resulted in the

property being sold for a price much below its real value. The objections of the appellants were not stated with any degree of clarity in their

application to the lower Court but in the course of the hearing it was urged that the sale was also vitiated by illegality. For the Court at the

beginning of its judgment states that:

It is urged inter alia that there has been material irregularity and illegality and fraud in the publication and conduct of the sale.

The Court held that the price fetched at the sale was not unduly low, that there was no material irregularity or illegality in publishing or

conducting it and that the price fetched at the sale even if considered to be low was not the result of the alleged irregularities or illegalities. Hence

this appeal. The contesting respondents here are the decree-holder, and the purchaser at Court auction who opposed the petition in the lower

Court. The latter is the decree-holder''s father.

The questions we have to decide are:

Was the price fetched at the sale unduly low so that it can be said to have resulted in substantial loss to the judgment-debtors?

If so was that loss due to material irregularity or fraud in publishing or conducting the sale?

Was the sale vitiated by illegality?

* * * * *

[After considering the circumstances whether the price was so low as to result in substantial loss to the judgment-debtors and finding against that

objection their Lordships proceeded as follows.]

In the light of all these circumstances we agree with the learned Sub-Judge that judgment-debtors have not shown that they suffered any

substantial injury by reason of the price fetched at the sale. And in this view of the case it is not necessary for us to decide the second question

which arises in this appeal, namely, whether the learned Sub-Judge was wrong in holding that there was no irregularity or fraud in publishing or

conducting the sale. We proceed therefore to the third point. Was the learned Sub-Judge wrong in holding that the sale was not vitiated by

illegality? On this point we think the appellants are entitled to succeed. For reasons which we shall presently state we think the sale was vitiated by

illegality. And in such a case the sale must be deemed to be altogether void. In order to set aside a sale on the ground of illegality it is not necessary

for the Court to hold that the judgment-debtor has been materially prejudiced by the sale. For the sale itself is a nullity. In this particular case we

are compelled to hold that the sale was held on a day which was not a day on which it had been advertised to take place or a day to which it had

been adjourned. The sale was originally posted to 8th July, 1935. It was adjourned to the 9th; then to the 10th and then to the 11th, the order of

the Court being taken for every adjournment. Then on the 11th it was ordered to be continued from day to day till the 26th and it was further

directed that the sale would be on the 26th. This was in our opinion an irregularity. It would not have been irregular if the Court had directed that

the sale should be adjourned from day to day till satisfactory bids were forthcoming and that these de die in diem adjournments should not continue

after the 26th. But for the Court to order on the 11th that the sale should not be concluded till the 26th amounted to an adjournment of the sale for

15 days. And Order 21, Rule 69(2) as it then existed laid down the rule that a sale should not be adjourned for a longer period than 7 days

without a fresh proclamation unless the judgment-debtor consents to waive it. And there is no indication here that the judgment-debtor did so

consent. However it is not this irregularity which forms the basis of our present decision. We merely mention it in ''passing. We now come to the

events of the 26th July. There was no sale on that day. And the Court made an order that the auction should be continued for 10 days from the

27th. It further ordered that the sale would be held on the 5th August. Moreover it is clear that the order of the Court was taken as meaning that

there would be no auction after the 5th August. For the decree-holder, forthwith caused notices to be printed and circulated in the villages to the

effect that, as per order of the Court, the auction would be held continuously from the 26th July to the 5th August and would be closed on the 5th

August. These notices which were headed ""sale notices"", were not only distributed in the villages and published in a local newspaper but also,

presumably under the orders of the Court, were published in the same manner as regular proclamations of sale. They were proclaimed by beat of

tom tom in the villages where the funds are situated, and were affixed to posts planted in the lands comprised in the notices. And the fact that these

formalities had been observed was certified by the Village Munsif, who also obtained in the certificate the attestation of no less than 28 witnesses.

It is abundantly clear therefore that the Court directed that this long drawn out auction would be closed on the 5th August : that this fact was made

known to all concerned who might have been present at the Court when it was made: and that it was forthwith widely published in the villages

where the lands are situated. (See Ex. XXI series and Ex. XXV and Ex. XXVI.)

But there was no sale on the 5th of August. Nor was the auction closed on that date. On that day the decree-holder represented that the auction

sale should be continued for another week and deposited Rs. 3-8-0 for the expenses of conducting the sale on seven more successive days. The

Court passed no orders on this request other than an order that the money so paid should be accepted. And the property was in fact put up for

auction on the 6th August and successive days and eventually knocked down on 12th August for Rs. 32,100 to the decree-holder''s father the

upset price being Rs. 32,087, the amount of the sale warrant.

The Court''s action in not selling the property on the 5th August or concluding the sale on that day was highly irregular inasmuch as it had been

widely proclaimed that that was the latest date of sale. Its action in selling the property on a date subsequent to that date was positively illegal. A

sale which is held on a day on which it has been expressly proclaimed that it shall not take place is not a valid sale at all. For that reason we must

hold that this sale was vitiated by illegality, that it was a nullity, and must therefore be set aside. We allow the appeal with costs both here and in the

lower Court.