Palaniappa Udayar vs Arumuga Pandaram and Others

This is an appeal by the auction-purchaser against an order setting aside a sale. The material facts may be shortly stated. The decree in the suit

directed the sale of the A and B schedule properties first; and then, if there was any deficit, the sale of the C and D schedule properties. The C and

D schedule properties belonged to defendants Nos. 5 to 8, and the decree provided that the items claimed by each of the defendants Nos. 5 to 8

should be exonerated on their paying the amount specified against each. The A and B schedule properties (lots Nos. 1 and 2 in the sale

proclamation) were sold for Rs. 1,200. On the date of the sale 5th defendant paid the portion of the decree amount due by him, and consequently

items Nos. 53 to 75 in lot No. 3 (Cand D schedule properties) were exonerated. Items Nos. 1 to 52 in the 3rd lot were sold and realized Rs.

4,350. Defendants Nos. 6 and 7 applied under Order XXI, Rule 90, Civil Procedure Code, to the Court to have the sale of the 3rd lot set aside,

on the ground that there had been a material irregularity in publishing and conducting the sale and that they had sustained substantial injury as items

Nos. 1 to 52 which were worth Rs. 7,000 were sold for a sum much less than their proper price.

It appears that certain items in the B schedule did not find a place in the sale proclamation and were not included in the sale of lots Nos. 1 and

An attempt was made to show that the items omitted were Samudayam lands which went along with the items specified in the sale proclamation,

but we agree with the Subordinate Judge that this was not proved. The sale proclamation, it may be pointed out, contains no reference to any

Samudayam lands. The Subordinate Judge set aside the sale of lot No. 3. The Subordinate Judge''s order is not very clear, but apparently he

considered that this omission on the part of the decree-holder to inform the Court that all the B schedule items had not been included in the sale

proclamation amounted to fraud, and that under the circumstances it was not necessary to prove damage or loss. He further hold that, as items

Nos. 53 to 75 had been exonerated, a fresh sale proclamation in regard to the remaining items Nos. 1 to 52 was necessary, and that it was proved

that there had been injury and loss to the petitioners on account of these irregularities. There is no finding by the lower Court as to whether the

omission to include all the B schedule properties in the sale proclamation was accidental or fraudulent, but it is clear we think that the sale took

place contrary to the directions in the decree, which authorised the sale of the C and D schedule properties only after the A and B schedule

properties had been sold.

Mr. Rangachariar for the appellant contends that the lower Court, not having found that any damage was caused by the omission to include all

the B schedule properties in the sale proclamation, ought not to have set aside the sale, and that the omission does no amount to a ""material

irregularity"" in publishing or conducting the sale, and that Order XXI, Rule 90, Civil Procedure Code, is consequently inapplicable. Under the

proviso to Rule 90 of Order XXI the Court must be satisfied that the applicant had sustained substantial injury by reason of the irregularity or fraud

complained of. Some causal connection must be shown between the irregularity and the inadequacy of the price which the properties fetched at the

sale.

Petitioners first witness admitted that the whole of the A and B schedule property would only be worth Rs. 2,000. The amount mentioned in the

sale proclamation was Rs. 7,000 odd and it would, in any case, have been necessary to bring the C and D schedule properties to sale. We do not

think that the evidence establishes that the inadequacy, if any, in the price fetched by items Nos. 1 to 52 was the result of the irregularity

complained of.

The question whether the holding of a sale contrary to the directions of the decree is a material irregularity within the meaning of Rule 90 of

Order XXI or an illegality, was raised in Muthiah Chettiar v. Bawa Sahib 26 Ind. Cas. 46 bat it was unnecessary for the learned Judges to decide

the point. Oldfield, J., held that he application to set aside the sale which was held in contravention of the directions in the decree was one u/s 47,

Civil Procedure Code, while Tyabji, J., was of opinion that Order XXI, Rule 9 '', Civil Procedure Code, being inapplicable to that case, it had to

be dealt with under the inherent jurisdiction of the Court.

Order XXI, Rule 90, Civil Procedure Code, must be read with Section 47, Civil Procedure Code. Proceedings to set aside the sale on the

ground of material irregularity or fraud in publishing or conducting the sale involve questions relating to the execution, discharge or satisfaction of

the decree and hence fall under both Section 47 and Order XXI, Rule 90, Civil Procedure Code. Proceedings to set aside Court auction sales on

any other tenable ground also involve questions relating to execution, etc., and hence fall u/s 47, though they may not fall under Order XXI, Rule

90.

Mr. Rangachariar referred to observations (mostly obiter dicta) found in certain decisions of the other High Courts tending to support the view

that a sale held in contravention of the terms of a decree should or might be set aside by a separate suit, as there was no distinct provision in the

Code providing for the presentation of an application to the executing Court to set aside such a sale. He argued on the strength of those

observations that the remedy of the defendants Nos. 6 and 7 was, therefore, not by an application u/s 47 to the executing Court but by a separate

suit. We agree, however, with the opinion of Oilfield, J., in Muthiah Chettiar v. Bawa Sahib 26 Ind. Cas. 46 that the executing Court is entitled to

grant such relief on an application u/s 47 (and hence no separate suit could lie), such opinion being in accordance with the preponderating weight of

authority in this Court. See Simmalapalli Mangayya v. Sammalapalli Sriramulu 19 Ind. Cas. 448 and Gunniah Vencatachalapathy Aiyar v. Perunna

Iyer 13 Ind. Cas. 133.

We think that the sale of lot No. 3 having been held in contravention of an express direction in the decree, the sale must be treated as held, if not

without jurisdiction, at any rate with material irregularity in the exercise of the jurisdiction of the Court, and the lower Court had the right on an

application u/s 47 to set aside the sale. See Manasaram Paria v. Nagendra Nath Sahu Roy 16 Ind. Cas. 235. It is unnecessary to consider the

question, whether a fresh sale proclamation in regard to items Nos. 1 to 52 ought to have been made before the sale was held. The appeal is

dismissed with costs.