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S.K. Dutta, J.—This appeal arises out of an execution matter. Respondent No. 1 Messrs. Calcutta Credit Corporation obtained a decree In the Calcutta High Court against the Appellant P.C. Bezbarua for the recovery of a car and a sum of Rs. 10,315/10/- with cost and Interest. This decree was sent for execution to the District Judge at Gauhati who sent it to the District Judge at Jorhat for necessary action. The District Judge at Jorhat in his turn sent the decree to the Subordinate Judge at Jorhat for execution but before any action could be taken the District Judge at Gauhati recalled the decree and sent it to the Subordinate Judge at Gauhati for execution.
On 29-11-56 the decree-holder got possession of the car and some shares of the judgment-debtor in the Govindapur Tea Company Limited were attached for realisation of the cash amount. On 11-12-58 a sale notice was issued. It appears from the record that this sale notice could not be served on the Judgment-debtor and a Sale Proclamation was issued 18.8.59 On 8.1.60 two share-holders of the Govindapur Tea Company, other than the judgment-debtor, filed petitions alleging that in the Sale Proclamation their shares were wrongly advertised for sale. The decree-holder admitted these mistakes and-hence: a fresh safe proclamation was issued. But no sale notice under Order 21 Rule 66 (2) was issued In respect of this sale proclamation. Thereafter the Munslf at Gauhati was entrusted with the conducting of the sale. The auction commenced on 29-2-60 and was closed on 9.3.60. The decree-holder and Respondent No. 2 the Bahadur Tea Company Limited were the only bidders. The Bahadur Tea Company Limited gave the highest bid and purchased the shares at Rs. 11,600/-. On 8-4-60 the judgment debtor filed a petition u/s 47 of the CPC for setting aside the sale alleging inter alia that the sale proclamation was defective and that no sale notice was served en the judgment-debtor and as a result the shares were sold at a very low price. The petition did not bear any court-fee On. 24-5-60 another petition was filed repeating the above allegations and stating that due to certain illegalities the entire execution proceedings were null and void. These petitions were considered by the learned Subordinate Judge who dismissed the same by his order dated 22.5.61. The present appeal is against that order.
It may be noted that the original sale proclamation is missing from the record. On a petition filed by the judgment-debtor the Managing Director of the Govindapur Tea Company Ltd. was asked to produce the sale proclamation served on him. Accordingly this was produced and It transpire ''that there was no mention In It of the time and place of sale. From the order of the Subordinate Judge dated 8-1-60 it is apparent that the sale notice was also not issued.
Mr. Ray, the learned Counsel for the Appellant, contends that an omission to give notice of sale under Order 21 Rule 66, CPC is more than a mere irregularity and renders the sale void. He also contends that the omission of the time and place of sale In the sale proclamation means that the sale which took place under such a proclamation was no sale at all under the Code of Civil Procedure. He submits that it is a very jutmaijj affects the interest of the judgment debtor, it Appellant; S. K. Ghose, Is to hose interest tin property should be sold at a negative price. The provision In Order 21 Rule 66(2) which the Court to issue the notice of sale and to men- hard case in which very valuable property was sold at a frivolous price.
Mr. Ghosh appearing on behalf of Respondent No. 2 (the auction-purchaser) submits that this appeal is not maintainable at all inasmuch as, according to Mr. Ghosh, the order of the Subordinate judge cannot be treated as an order u/s 47 Code of Civil Procedure. I may first deal with this objection.
For determining whether or not an order falls u/s 47 CPC we must first see whether the order decides a'' question arising between the parties to the suit in which the decree was passed and whether there was a judicial decision binding on the par ties in a subsequent proceeding. The determination of a question relating to an application under order 21 Rule 66 may thus in some cases be an order passed u/s 47 In the present case on a petition filed by the judgment- debtor, the learned Subordinate Judge adjudicates on tin question whether the omission of the time and place of sale in the sale proclamation renders the sale null and void. His order in this matter is not an administrative'' order but a Judicial order affecting the rights of the per ties and is thus within Section 47 and appealable.
In AIR 1948 177 (Nagpur) it was held that where an application was brought for setting aside a sale not on the grounds covered toy Rules 89, 90 and 91 of Order 21 but on the ground of want of notice under 0rder 21 Rule 66, the application lay u/s 47. This decision gets support from decision of the Supreme Court in Merla Ramanna Vs. Nallaparaju and Others, In that case the decree directed only the sale of mortgage, rights but the property itself was sold. The Supreme Court held that such a qustion while arising between the parties could be agitated by an application u/s 47 and not in a separate suit.
In B.V. Patankar v. C.G. Sastry AIR 1961 GC 272 it was held that where the executing court ignored the provisions of the Rent Control Order prohibiting eviction of tenants, and passed an order of delivery of pos session in execution of a decree, the order can be set aside and an order of redelivery to the tenant could be passed on an application u/s 47 read with Sections 151, Code of Civil Procedure.
In Balwant Rai Kumar Vs. Smt. Amrit Kaur, the Punjab High Court held that when sale was set aside on the ground of fraud or on the ground that no "order under Order 21 Rule 66(2) was issued, an application u/s 47 was maintainable.
In Bhan Kumar v. Lachimi Kanta AIR 1941 566 it was held that where a sale was wholly without Jurisdiction and consequently void, an application by the judgment-debtor to have the sale declared void would lie u/s 47.
The principle to be deduced from the above authorities is that when the sale of any property is sought to be set aside on the ground of the sale being nun and void, the application, lies u/s 47.
In the case before us the learned Subordinate Judge, holds that "even if time and place was not mentioned in the S. P., it is an irregularity and does not vitiate that sale and Rule 78 of order 21 applies and the remedy is by suit and not by such a petition u/s 47 CPC fit this ''stage I may set out the provisions of the CPC necessary for our purpose. Order 21 R. 65, so far as is relevant, is as follows:
66(1) Where any property is ordered to be sold by-public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of the Court.
2) Such proclamation shall be drawn up after notice to the decree-holder and the; judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
a) the property to be sold;
b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in. part of an estate paying revenue to the Government;
c) any encumbrance to which the property is liable;
d) the amount for the recovery of which the sale is ordered; and
e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.
12a. Order 21 Rule 78 reads as follows:
Irregularity not to vitiate sale, but any person injured may sue-
No irregularity in publishing or conducting the sale of moveable property shall vitiate the sale,- but any person sustaining any injury by reason of such irregularity at the, hand of any other person may institute a suit against him for compensation or (if such other person is that purchaser) for the recovery of the specific property and for compensation in default of such recovery.
It may be noted that Rules 64 to 73 of order 21 apply to Sale generally". Rules 74 to 81 of the said Order apply to Sale of moveable property". Rules 82 to 103 apply to Sale of Immovable property".
Order 21 Rule 78 quoted above, bars an application for setting aside a state of moveable property lor any irregularity. But it cannot bar such an application if the sale is illegal and consequently a nullity. It is no doubt not easy to draw the line between irregularity and illegality in an execution sale but where a mandatory provision of law is violated the sale should be regarded as having been illegally conducted and would be void.
Rule 66(2) of Order 21 is no doubt in imperative terms when it says "Such proclamation shall be drawn up after notice to decree-holder and the judgment-debtor and shall state the time, and place, of sale." That question is whether this provision has merely a directory import or it is mandatory. If a provision gives a power coupled with a duty, it is mandatory and whether it does so or not will depend on such considerations as the nature of the thing empowered to be done the object for which it is done and the persons for whose benefit the power is to be exercised. The provision as to notice to the judgment-debtor is Intended to give him an opportunity to raise any objection, he may have to the proposed sale.'' So there is a duty on the part of the Court to issue the notice so that the judgment debtor may not be deprived of this opportunity As pointed out by Mundhol-kar, J. in Dada Narayan Thakre Vs. Jaichand Nagorao and Another, it is one thing to say that the Court can do such and such a thing after issuing a notice and it is another thing to say that the Court will issue a, notice and nothing more
Where a thing can be done only after issue of a notice It necessarily follows "that it can only be cone after such a notice has been: served. The jurisdiction of a "court to sell a property under Rule 66(2) of Order 21 can only be derived after service of notice and cannot be obtained merely by ordering the" issue of a notice". I may add that in the present case there was no order even for the issue of the notice. Again that object'' of the sale proclamation is to give notice to intending purchasers-arid omission to mention the place and hour of sale naturally affects the interest of the judgment debtor, it is to whose interest the property should be sold at. a competitive "price. In this view of the matter, I am- of the opinion that the provision in Order 21 Rule 66(2) which enjoins the Court to issue the notice of sale and to mention in the sale proclamation the time and place of that sale is a mandatory provision of law, the breach which manes the sale null and void.
The above view gets support from the decisions In a number of cases which although deal with sale of Immovable property, lay down the effect of non-issue of not or omission to mention place and hour of sale as required under 0. 1 Rule 66 (2).
In Chedaml Lal v. Amir Beg ILR All 67C, the property was advertised to be sold at 11 A.M. and was sold at 7. A.M was held that the mistake was more than mere Irregularity in conducting the sale and that the whole proceedings were invalid. The Court observed that not merely there was an Irregularity in the sale but there was, practically speaking, no sale at all.
In Jasoda v. Mathura Das ILR All 511 the sale proclamation, omitted to state the place of saying the sale took place on a date other than that notified in the proclamation and before the expiration of the thirty days required by the then provision of Section 290 Code of Civil Procedure. It was held that the non-compliance with the provisions of the law was more than a mere irregularity and that it must have caused substantial injury.
In Basharutulla v. Uma Churn Dutt ILR 1G Cal 794, a property advertised for sale was sold on the day fixed, but at an earlier hour than that stated in the proclamation It was held that there was no sale within the meaning of the Code. In this connection Pcthersm C.J. observed that the/ proclamation of the time and place of sale were conditions precedent to its being a sale under the Code at all.
In Jayarama Aiyar Vs. Vridhagiri Aiyar, a proclamation of sale of lands in execution of a decree, as framed by the Court, was not published in, the village where the lands were situate but the process-server intimated at the village that the sale would be held at a place and by an officer different from these fixed by the proclamation. It was held that a sale at the place and by the official fixed by the proclamation is illegal and nullity and not merely "irregular" within the meaning of Order 21 Rule 90 In this connection Old field, J. observed:
It is unnecessary to go through those cases, because the decision In each rested on the facts in it, and because it do 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 deeimed to be an illegality.
In Pannalal v. Firm Hasan Dada AIR 1939 Nag 258 the sale was proclaimed for 12 noon but was held at 9 A.M. While setting aside the sale Gruer, J. quoted the above) observation with approval.
In AIR 1948 177 (Nagpur) , it was held that a notice under Order 21 Rule 66(2) was mandatory and omission to give it would not be treated as curable irregularity. Similar view was taken by the Saurashtra High Court in Dada Narayan Thakre Vs. Jaichand Nagorao and Another, (mentioned above).
In Jagannath Vs. Perumal Naidu and Others, it was observed that where a judgment-debtor was not served with a notice under Order 21 Rule 66 the entire sale; proclamation and the subsequent sale held in his absence should be deemed to be absolutely null and void ab initio.
I may next refer to the cases cited at the Bar In support of the contention that the want of the sale notice or the omission to mention the time and place In the sale proclamation is a mere irregularity.
In Satyanarayana Murthy v. Bhavanarayana, (S) AIR 1957 AP 185 (FB), It was held by a Full Bench-of the Andhra Pradesh High Court that the violation of the provisions of Order 21 Rule 66(2) was only an Irregularity in the publication or conduct of sale, It was, however observed in this case that If the proclamation was not properly drawn up, it could not be said that there was proper publication because it would be publication of an improper proclamation of sale. It is difficult to see how a sale held on improper publication of sale could be anything but void and initio.
In Kothayadath Karunakaran Nair Vs. Methalayil Chathu, ft was held by a single Bench of the Madras High Court that absence of a notice under Order 21 Rule 66 would not by itself, make the sale a nullity but would at best be only an irregularity. It was however added that it was possible that in some rare cases a failure to Issue a notice under Order 21 Rule 66 might make the sale void as when the sale was held without the judgment-debtor being ever aware of it. In the case before us there Is nothing to show that the judgment-debtor was aware of the sale.
In Dwaraka Das v. Bhawani Prasad AIR I960 All 510, a single Bench of the Allahabad High Court held that an omission to specify the place of sale in the sale proclamation was only an irregularity not vitiating the sale when there was no proof of loss or prejudice to the objector. The learned Judge quoted the principle laid down by Petheram C. J. in ILR All 676, to the effect that when a statute authorised a sale which was to be conducted ''81 a time and place properly notified a sale otherwise conducted was not a sale at all within the meaning of the statute. But the learned Judge refrained from commenting on this principle simply by saying that the facts of that case were vitally different. I may say, with due rear; pact, that difference in facts can make no difference to the above general principle laid down.
From the above discussion It appears that the weight of judicial decisions is In support of the view that the provision in Order 21 Rule 66(2) regarding notice and mention of time and place Is mandatory and Its breach will render a sale null and void. I accept it as the correct view.
Mr. Ray has made another submission which is as follows. By letters dated 1-8-57 and 17-9-57 the Managing Director of the Govindapur Tea Company drew the attention of the Subordinate Judge to the fact that then shares of the judgment-debtor in the said company had already been attached by orders of the Registrar of Co-operative Societies, Assam in two cases. u/s 81 of the Assam Co-operative Societies Act, 1949, the Registrar may direct the attachment of property for recovery of dues under the said Act and the attachment has the same force and effect as if it had been made by a competent Civil COUP ft is contended that in the present case the amounts for which the Registrar attached the shares being within the pecuniary jurisdiction of a Subordinate Judge, the Registrar issuing the orders of attachment must be treated as a court of the status of a Court of the Subordinate Judges. u/s 63 of the CPC where two courts of the same status attach a property, it is the Court which first attaches it that can receive or realise such property. It is true that Sub-section. (2) of Section 63 saves the sale by a Court other than the court attaching it thirst from being invalid. But when a Court knowingly violates Sub-section (1) of Section 63, as in the percent case, Sub-section (2) is no protection.
I do not think there is any force in the above argument. The term "court" used in Section 63 CPC means a court to which the Code applies and the Registrar of Co-operative Societies is not a court of this kind although his attachment order has the same force and effect as the attachment order of a competent Civil Court. But in consequence of the view I have taken of the el feet of the non-Issue of the notice and omission to mention time and place as required under Order 21 Rule 66 (2), this appeal must succeed. The order of sale is set aside and the parties will revert to the right which they had before the sale proclamation was drawn up.
In the circumstances of the case, parties will tear their own cost throughout.
G. Mehrotra, C.J. I have read the judgment of my brother Dutta J. and I agree with him that this appeal must succeed. But as the point raised is of some importance I would like to give my own reasons.
The facts are fully set out in his judgment. Respondent No. 1 Messrs. Calcutta Credit Corporation obtained a decree In the Calcutta High Court against the Appellant Shri Prafulla Chandra Bezbaruah for the recovery of a car and a sum of Rs. 10,315/10/-. In execution of the said decree certain shares of the judgment-debtor In the Govindapur Tea Company Limited were attached and in an auction sale held on the 29th February 1960 the Respondent No. 2 the Bahadur Tea Company Limited purchased the said shares at Rs. 11,600/-. The auction sale was completed on the 9th March 1960 and on the 8th April 1960 the judgment-debtor Appellant filed a petition purporting to be one u/s 47, CPC Cods, for setting aside the sale. This petition was supplemented by another petition on the 24th May, I960. The trial court refused to set aside the sale and the present appeal has been filed against the said decision.
Before dealing with the main contention of the Appellant some objections raised by the Respondents may be disposed of The contention of the Respondents Is that the application made under Sectionu 47, CPC was not property stamped. There was no proper application by the judgment-debtor for setting aside the sale The trial Court and the parties proceeded on the assumption that there was a valid application for setting aside the sale and thus at this stage the question need not be examined.
It is then urged that there was no evidence to show that the sale proclamation issued under Order 21, Rule 66, CPC did not contain the time and place of the sale and that the proclamation was defective. The Court below has also briefly referred to this contention, but has primarily based its decision on the finding that the failure to mention the time and place of the auction sale in the sale proclamation is a mere irregularity and thus sale cannot be set aside in view of the provisions of Order 21 Rule 78, Code of Civil Procedure. The original sale proclamation was missing from the Court file and thus at the instance of the judgment-debtor the Managing Director of the Govindapur Tea Company Limited was asked to produce the sale proclamation served on him, which he did.
The copy of the sale proclamation served on the Govindapur Tea Company Limited shows that the sale proclamation did not contain the place and the time of the auction sale. As the original sale'' proclamation was missing from the record, secondary evidence was permissible and when the copy of the saie proclamation served on the Govindapur Tea Company Limited was produced, the judgment-debtor has done all that he could do under the circumstances to prove the contents of the sale proclamation. It was argued that the judgment-debtor could himself have produced the copy served on him. This argument assumes that the copy of the sale proclamation was served on the judgment-debtor. The case of the judgment-debtor is that no notice was issued to the judgment-debtor before the sale proclamation was drawn up, nor was any copy of the sale proclamation served on him. The question thus of his producing the copy does not arise.
It was then urged that there was no evidence to prove the fact that no notice was served on the judgment-debtor before, drawing up the sale proclamation under Order 21 Rule 66(2), Code of Civil Procedure. It was for the judgment-debtor to prove by positive evidence the absence of the notice under Order 21 Rule 66(2), which he has failed to do. It is open to the court to examine the record and find out whether any notice under Order 21 Rule 66(2) was or was not served on the judgment-debtor. The Court below assumed that such a notice was not served but has repelled the contention of the judgment-debtor on the ground that it was a mere Irregularity which will not" vitiate the sale under Order 21 Rule 78, Code of Civil Procedure. On the facts thus there is not much controversy and it has been fully established that the sale proclamation issued did not contain the time and place of the auction sale and further that no notice under Order 21 Rule 66(2) was'' issued in the present case.
Two main questions arise in the case. The first point to be considered is whether any application for setting aside the sale is maintainable u/s 47 CPC . Section 47, CPC provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satis* faction of the decree, shall be determined by the Court executing the decree and not by a separate suit. By as
appending Act of 1956 an explanation has been added to Section 47 which lays down; that for the purposes of this section Plaintiff whose suit has been dismissed, a Defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit. In order to attract Section 47 it is necessary that the question must arise between the parties to the suit relating to the execution, discharge or satisfaction of the decree. When the judgment-debtor contends that the sale is not valid and the decree does not stand satisfied while the auction purchaser asserts that the sale has been properly effected, the question does arise relating to the execution discharge or satisfaction of the decree. After the decree has been satisfied, the execution court becomes functus officio and the. question thus raised by the judgment-debtor that the auction sale should be treated as a nullity and it should be deemed in the eye of law to be no sale is a matter relating to the execution, discharge or satisfaction of the decree. Reference in this connection is made to the case of (S), Merla Ramanna Vs. Nallaparaju and Others, and the case of B.V. Patankar and Others Vs. C.G. Sastry, In 1956 case it was observed:\\
When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties ta the decree, only by an application under Section. 47 and not in a separate suit.
In the 1961 case it was held that when the executing Court ignores the provisions of the Rent Control Order prohibiting eviction of the tenant and passes an order of delivery of possession in execution of a decree, an order can be made setting aside the said order and further order of redelivery to the tenant can be made u/s 47, Code of Civil Procedure.
In the case of Prosunno Kumar Sanyal v. Kali as Sanyal, ILR 19 Cal 683, their Lordships of the Privy Council dealing with a case u/s 244 of the Civil procedure Code, 1882 which corresponds to Section 47 of the present Act, held that the matter relating to execution. Is charge or satisfaction of the decree can b-3 decided only by the executing court even though the auction purchaser maybe an interested party. The facts of that ace are Mat the sale held was sought to be challenged n the grpund that the decree-holder had received from one of the co-sharers in the zemindari their proportionate mounts of the debt decreed and. had agreed that their lares should, be exempt from the execution sale about take place. The sale took place7 subject to that exempt on. Thatjjale was however subsequently set aside ante attachment of the entire share was revived and a econd sale,-, was held in which the entire share was sold. was urged, by the judgment-debtor that as the second le was a nullity in view of the first sale exempting they are of one of the co-sharers, the matter could be agitate I only by means of an application u/s 244, CPC of 1882 and not by a suit.
It was admitted by the counsel before their Lordships .the lasting Cree, at, cipher of the Priyy Council that the question at issue was one execution discharge or satisfaction of the only point raised was that as the auction no party to the decree and his interest if the sale was set side, such a remedy brained through a Suit and not by an ap-Section,244.'' This contention was repelled. however has been set at rest by add of the explanation Section 47. This view was gain reiterated by their Lordships of the Privy Council in the. case of Ganapathy Mudaliar v. Krishiwma,chariar AIR 1917 PC 121. in that case in the sale proclamation a wrong decree was entioned. The sale was held and confirmed and no objection was raised in execution to its validity. The sale was sought to be challenged by means of a suit and it was held that Section47, CPC applied to the case.
In the case of Shekh Tamizali Vs. Md. Nasarali Bhuiya and Another, it was held by the Calcutta High Court that the question as to the validity of the execution-sale is clearly a matter which arises between the parties to the; suit and relates to the execution of the decree and therefore falls within the purview of Section 47, Code of Civil Procedure. In the case of N. Narayana Iyengar v. Veerabhadra Pillai ILR Mad 417 a suit was brought by a party to the decree against an auction purchaser by which the sale was challenged. The suit was held to be barred. It was held that the ground for such non-maintainability of the suit is not that Section 244 bars the suit as the auction purchaser is'' the representative of the decree-holder, but that Section 244 being a bar to setting aside the against the purchaser is not maintainable until it is so set aside. The Privy Council Case which 1 have already referred to, was relied upon. To the same effect is the decision of the Bombay High Court in the case of Gokulsing Bhikaram Pardeshi v. Kishansingh Guru Laxmangiri ILR 34 Bom 546.
All these authorities show that an auction sale can only be set aside by means of an application u/s 47, Code of Civil Procedure. Section 47, CPC not only bars a suit but lays down the procedure'' for deciding the matter relating to the execution, satisfaction and discharge of the decree. |n the case of sale of immovable property, if the sale is sought to be set aside on the ground of any fraud or material irregularity, an application has to be made under Order 21 Rule 90, Code of Civil Procedure. An application under Order 21 Rule 90 will only lie before the sale is confirmed. After that confirmation if the sale is sought to be set aside, an application will only lie u/s 47, Code of Civil Procedure. If the sale is sought to be set aside on the ground of material irregularity under Order 21 Rule 90, the applicant has further to show that he has sustained substantial injury by reason of such irregularity or fraud. If the sale is to be set aside by art application u/s 47, this limitation is not there. In fact the scope of the application under Order 21 Rule 90 is covered by Sec,: 47 also.
Reading Section 47 and Order 21 Rule. SO together it will appear that if the sale is sought to be set aside on ac count of any irregularity or fraud in publishing or conducting the sale, an application is to be made under Order 21 Rule 90, which only means that such an application can be filed before the confirmation of the sale and relief cart be granted only if substantial injury has been established. In cases where1 the Irregularity or fraud Is not In respect of publishing and conducting the sale, or in cases where the irregularity is such which renders the sale no nest in the eye of law, such a ground cannot be said to be a material irregularity or fraud in publishing: or conducting the sale and the sale can only be set aside by application u/s 47 and not by an application under Order 21 Rule 90 Order 21 Rule 90, however, ''"deals only with the sale of immovable properties. Order 21 Rule 78 coals ''deals(tm) with the cases of moveable properties. Order21 Rule 78 provides as follows:
No irregularity in publishing or conducting the sale "moveable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.
It cannot, therefore, be'' argued that no application u/s 47 was maintainable.
The next question is whether the words ''No irregularity in publishing or conducting the sale of move able property shall vitiate the sale'' in Or. 21 Rule 78 will be a bar to the powers of the executing court acting u/s 47 to set aside a sale or Order 21 Rule 78 provides the manner of setting aside the sale by means of a regular suit. To my mind Order 21 Rule 78 does not provide for a remedy for setting aside the sale by means of a suit. It only lays down that if the sale is sought to be set aside even by means of an application u/s 47, on the ground of any irregularity in publishing or conducting the sale, the sale cannot be set aside, and the only remedy of a person who has sustained any injury by reason of such an irregularity is to bring a suit for damages.
The question which next arises is what is the meaning of the words ''irregularity in publishing or con-, ducting the sale''. In interpreting these words assistance can be taken from the cases under Order 21 Rule 90. Two things are essential before Order 21 Rule 78 can be attracted, firstly that the judgment-debtor should allege an irregularity and secondly that it should be an irregularity in publishing or conducting the sale. The meaning of the term ''irregularity'' is wide enough to include even an illegality and connotes want of conformity to some recognised rule or procedure. In fact there is no distinction between a material irregularity and an illegality in the conduct of a sale and in one sense whatever is irregularity is also illegality. It is only a matter of degree.
To my mind if a certain recognised procedure has not been followed which renders the sale a nullity, it cannot be said to be an irregularity in publishing and conducting the sale. As a result of non-compliance with any rule or procedure if in the eye of law the sale can be held to be non-existent, it cannot be said to be an irregularity relating to publishing and conducting the sale. If, how-ever, the irregularity of procedure pointed out does not affect the validity of the sale itself, then undoubtedly it will be an irregularity in the publication and conduct of the sale. The question at once arises whether, if the sale proclamation is issued without mentioning the time and place and if Order 21 Rule 66(2), it can be said that the consequent sale is no sale in the eye of law.
Order 21 Rule 66(2), CPC Cods makes it obligatory to issue notice to the decree-holder and the judgment-debtor before drawing up the sale proclamation. The provision on the plain language of Order 21 Rule 66(2) is mandatory. Further this provision also lies down that the time and place of the sale shall be mentioned. Thus the mentioning of the time and the place of sale is mandatory. Regarding the other particulars to be given in the sale proclamation, it only says that they are to be specified as fairly and accurately as possible. Thus on the language of Order 21 Rule 66(2) it is legitimately argued by the Appellant that the provision of notices and the requirement of the time and place are mandatory but the other matters to be mentioned are only directory. Any violation of a mandatory requirement will render the sale a nullity. The difference between a mandatory requirement and a directory requirement is that in the former case all action taken in disregard of such a provision is a nullity, while in the case of a directory nature of provision the action taken in violation of those requirements may not necessarily reindeer the action a nullity. The other test for holding whether a provision is mandatory or directory is whether such a requirement can be waived by a party concerned.
The sale proclamation is to be drawn up by the Court and it cannot be said that the notice under Order 21 Rule 66(2) can be waived by the decreed holder or the judgment debtor. Nor can it be said that the requirement of timed and place to be mentioned by the court can be waived by the decree-holder or the judgment debtor. The object underlying the requirement is that there should be sufficient number of adders at the auction and the property should fetch a proper and a reasonable price and that the decree-holder may not take advantage of the absence of the time and place and purchase the property at a low price. Further it is urged by the Respondents that the preparation of the sale proclamation is a part of the conduct of sale and if any irregularity is committed in the drawing up of the sale proclamation, it cannot be said that such an irregularity does not relate to the publication and conduct of the sale and thus Order 21 Rule 78 will not be attracted.
If this argument is accepted, then even if the sale takes place without the drawing up of the sale proclamation or publishing the sale proclamation, it will be a mere irregularity relating to this publication and conduct of the sate. The decree-holder can manage to get the auction sale held at the residence of the authority which has power to conduct sale, without any notice under Order 21 Rule 66(2) and without the knowledge of the judgment-debtor or anybody else of the public and yet such a defect will only be an irregularity in publishing and conducting the sale. In my judgment Order 21 Rule 78 cannot be interpreted to mean that every mistake or procedure committed in drawing up the sale proclamation, whether it goes to the very root of the jurisdiction or whether it violates a requirement which has to be observed anterior to the drawing up of the sale proclamation, will be only an irregularity in conducting and publishing the sale.
The authorities on this point have already been, dealt with by my brother in his judgment. I would only like to refer to some of them In the case of ILR Cal 794 a property advertised for sale u/s ?87, CPC was sold on the date fixed, but at an earlier hour than that stated In the proclamation. It was held by Peterman, C. J. that in such a case there has been no sale within the meaning of the Code of Civil Procedure, as the proclamation of the time and place of sale and the holding of the sale at such time and place are conditions precedent to the sale being a sale under the Code. The learned Judge said that it is clear from the provisions of the Code that if the time and place is specified, the sale must take place at the time and place advertised and if it does not take place at that time and place, it will be treated as if no sale has taken place under the Code. Although the case reported in ILR All 676 is not reflected to in this case, that was also a judgment delivered by Peterman, C.J.
The same view was followed in the case of ILR All 511 in the case of Jayarama Aiyar Vs. Vridhagiri Aiyar, it was held that where a proclamation of sale1 of lands in execution-of a decree, as framed by the Court, was not published in the village where the lands were situate but the process-server intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation, a sale held at the place and by the official fixed by the proclamation is illegal and a nullity and not merely ''irregular'' within the: meaning of Order 21 Rule Code of Civil Procedure. In this case an appeal was filed against the order of the District Judge purporting to ''have been passed under Order 21 Rule 90 setting aside the sale The Madras High Court upheld the order of the court below setting aside the sale, though it held that it was not a case covered by Order 21 Rule 90 but was one covered by Section 47, Code of Civil Procedure. The following observation at page 38 (of ILR Mad) : (at pp 584-585 of AIR) may be opposite:
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.
The Respondents have very strongly relied upon the case of (S) AIR 1957 AP 185. The facts of this case are that an application was filed by the judgment-debtor for setting aside a sale on the ground that ho one of the judgment-debtors filed an application tinder Section 47, CPC for setting aside the sale on the ground amongst others that there was omission of lattice to the Petitioner under Order 21 Rule 66(2) before the settlement" of the terms of the sale proclamation as rehired by the CPC under Order 21 Rule 90 the judgment-debtor was directed to furnish security and is he failed to do it, the application was dismissed. The raised .in appeal was that as the want of notice to the Petitioner under Order 21 Rule 66 (2) before the settlement f the terms of the sale proclamation fell u/s 47, Code of Civil Procedure, the court below had no jurisdiction o ask him to furnish security. The counsel for the Respondent has, as evident from the referring order at page 86, conceded that one of the grounds fell u/s 47, but argued that the ground of the want f notice fell under Order 21 Rule 90. The following question as referred to the Full Bench:
Whether non-service of notice under Order 21 Rule 66(2), Code of Civil Procedure, is an irregularity in publishing and inducting an execution sale?
Reference the leading judgment was given by Bhimainkaram J.- with which Subba Rao, C.J. agreed. The ill Bench answered the reference in the affirmative. The ill Bench ''thus held that the non-issue of notice was an regularity in publishing and conducting the sale. From the perusal of this judgment, It will appear that the main question to which the Full Bench appealled its mind was whether the want of notice is an Irregularity in the conduct and publication of the sale and not to the question whether such a defect will be an illegality and not a mere irregularity. The cases of ILR All 676 and ILR Cal 794 do not seem to have been considered by their Lord-nips of the Andhra Pradesh High Court. The controversy which has been examined in the Andhra Pradesh case is as to the point of time at which the conduct of the sale can be said to have commenced. The view of the Full Bench is that all matters after the passing, of the order of sale relate to the conduct of sale but matters anterior to the passing of the order of sale will not be matters relating to the conduct of the sale. To that extent there was some difference of opinion. The extreme view held by some courts that the conduct of the sale starts after the sale proclamation is published was not accepted. The case of Dada Narayan Thakre Vs. Jaichand Nagorao and Another, has taken a contrary view.
The next case referred to is the case of AIR 1950 All 510. This is a decision by a single bench of the Allahabad High Court. In that case the .earlier case reported in ILR All 676 which I have already referred has been distinguished on facts. Although it has been observed in that case that certain observations made in ILR All 676 are contrary to the later decisions of that! Court, but there is no decision on the point as to whether they want of service of notice under Order 21 Rule 66 (2) will render the sale a nullity. I find it difficult to accept that if a mandatory provision such as mentioning the time and place of the sale is violated, the sale cannot be said to be a nullity.
It was further argued by the .counsel for the Appellant that the first part of Order 21 Rule, 78 has to be read along with the latter part of it and the extent and the ambit of irregularity which will vitiate a sale must be determined in the light of the latter part of Order 21 Rule 78. The argument is that in the cases where a suit can be filed for either the, recovery of the property or for damages, the sale cannot be set aside u/s 47 it necessarily follows from this argument that cases where no suit can be filed, the sale can be set aside by an application u/s 47. In other words, where no suit can be filed, the case will not be one of an irregularity in conducting and publishing the sale. Thus there will be no bar to the setting aside of sales where no suit can be filed under Order 21 Rule 78. In fact Mr. Ghoso In his argument has contended that the right'' to get damages and the right in certain cases to get back the property is in substance! the right to get the sale set aside. In other words the argument Is that the suit under Order 21 Rule 78 is the only remedy available for setting aside a sale.
If that argument is accepted, then obviously Order 21 Rule 78 first part will not apply to the, cases in which no suit can be filed for damages or for recovery of the property under the latter part of Order 21 Rule 78 and the only remedy will be to make an application u/s 47, because it relates to the execution, discharge or satisfaction of the decree Cases which are covered by Order 21 Rule, 90 as i have already indicated, come within the scope of Section 47. But as on the ground of irregularity a special'' procedure has been provided for to challenge the sale by means of an application under Order 21 Rule 90, an application u/s 47 may not be maintainable. If Or. 21 R. 78 provides the only way of challenging the sale, namely by means of a suit, then the matters which other-wise fall under the provision of Section 47 and are taken out of the jurisdiction of the executing court are those only in which a suit can be filed under Order 21 Rule 78. In the present case it cannot be disputed that no suit could lie either for damages or for recovery of the property.
A suit for damages would lie only against a person at whose instance the injury has been caused to the Plaintiff by reason of such irregularity. The irregularity should be at the hand of any other person which has resulted in the injury to the Plaintiff. In the present case the injury if at all, has been caused to the judgment-debtor by non-compliance with certain mandatory provisions by the court and not by the decree-holder. There can be no suit for recovery of the property, for, it cannot be said that any injury was caused to the judgment-debtor at the hands of the auction purchaser. If Mr. Ghose''s argument is accepted that the right of suit is the only remedy for setting aside the sale and thus the judgment- debtor is deprived of the right to move the court u/s 47, then under no circumstances it can be said that the injury in this case was due to the irregularity committed either by the- decree-holder or by the auction purchaser. On that argument of Mr. Ghose the only remedy of the Appellant will be to file an application u/s 47 and there will be no bar to the maintenance of such an application under the provisions of Order 21 Rule 78.
For the purposes of this case, however, it is not necessary to decide finally the question as to whether the scope of an irregularity in conducting and publishing the sale under the first part of Order 21 Rule 78 is con- fined only to the cases where the injured party could file a suit under the latter part of Order 21 Rule 78, or it is an absolute bar to the setting aside of the sale of Immovable properties.
This appeal Is allowed. The order of the court below is set aside. The sale is set aside and the case is sent back to the execution court to proceed with the execution from the stage prior to the drawing up of the sale proclamation and then follow, the subsequent procedure'' according to law. The parties will bear their own costs of this appeal.