Sankara Narayana Pillay vs Gangammal and Others

Madhvan Nair, J.—The first auction purchaser of certain properties sold in execution of the decree, in O.S. No. 219 of 3919, on the file of

the Court of the District Munsif of Tutioorin, is the appellant in this Civil Miscellaneous Second Appeal. He purchased the property for Bs. 2,600

and deposited 25 percent, of that amount, but failed to deposit the balance in time. The sale was, therefore, set aside and a re-sale was ordered.

At the re-sale, the same property fetohed only Rs. 1,400. The judgment-debtor then applied under Order 21, Rule 71, for the recovery of the

difference of Bs. 1,200 from the appellant (first auction-purchaser), on the ground that the re-sale which resulted in the sale of the property, for a

smaller amount, was caused by his failure to complete the purchase in time and that, therefore, he is responsible for paying her this difference in

price. Both the lower Courts upheld the contentions of the judgment-debtor.

In this appeal, the appellant has urged ""only two points which are specified as points 2 and 3 in the memorandum of appeal, presented by him to

the lower Court. These are : (1) the time and place of sale were not mentioned in the proclamation issued for re-sale, and the re-sale is, therefore,

null and void and cannot affect the appellant. (2) The date of the re-sale was not specified in the proclamation and therefore the re-sale would not

bind him.

As regards point No. (1), it may be mentioned at the very outset that this objection was not pleaded by the appellant in his objection statement

filed before the District Munsif; nor was if; argued before the first Court. No evidence also has been adduced to show that it was on account of the

non-mention of the time and place in the proclamation of sale that the property failed to fetch the original price. What is argued is that the omission

complained of is not an irregularity, but an illegality and that, therefore, the re sale is a nullity. As pointed out by Oldfield, J., in Jayarama Ayyar v.

Vridhagiri Aiyar AIR 1921 Mad. 583, it is difficult to lay down any general rule for distinguishing between an illegality and an irregularity and the

decision in any case must rest on its special facts. The cases cited by the learned vakil in support of the argument that the omission to mention the

time and the place in a proclamation for sale amounts to an illegality are all clearly distinguishable. In Basharutulla v. Uma Churn Dutt (1889) 16

Cal. 794, the property that had bean advertised for a particular date was sold on the date, but at an earlier hour, than that stated in the

proclamation for sale and the Court held that in such circumstances, there wag no sale within the meaning of the Code. The reason is obvious and

is thus stated by the learned Judge:

When the time advertised arrived, the property had been sold and the whole thing was over; and when the persons came for the purpose of

attending the sale at the time advertised; they found that the property had been sold and that they were too late.

Following this case, it was held in Jayarama Ayyar v. Vridhagiri Aiyar AIR 1921 Mad. 583 that, when it was intimated in the village where the

lands were situate, that a sale would be held at a place and by an officer different from those fixed by the proclamation, the sale held at the place

and by the official fixed by the proclamation is illegal and a nullity and not merely an irregularity, obviously on the ground that the effect of the

intimation given was to divert the possible bidders to a place, where the sale was not held and therefore it could not be said that the property had

been sold within the meaning of the Code. In Subrayabin Venkatesh v. Ganpa (1911) 35 Bom. 395 it was found that the property resold was not

the property originally sold. It is clear that if the same property is not re-sold, the first auction-purchaser cannot be made liable for the deficiency in

price, as there has been no sale of the property originally sold to him. The re-sale in such circumstances, is a nullity.

In the present case, there was no mis-statement of time or place in the proclamation, nor was the property re-sold, different from the one

originally sold : only the time and the place are not mentioned in the proclamation. In the absence of any notification to the contrary, as pointed out

by the Subordinate Judge, it is not unreasonable to hold that the purchasers would presume that the sale would, as is well-known and usual, be

held within the premises of the Court, which holds the sale and within the usual office-hours. As has already been pointed out, it has not been

proved by evidence that the omission complained of brought about a deficiency in the price of the property, when it was resold. I hold that the re-

sale in this case has not been vitiated by any illegality on account of omission to mention the time and place in the proclamation.

The second objection deals with the omission to mention the date of the sale in the proclamation. The date is not mentioned in its appropriate

place; but it can clearly be inferred from the date, upto which interest on the decree amount is calculated and the context in which this date is

mentioned in the body of the proclamation clearly shows that it is the date of sale that is referred to therein. It is true that the date of sale should not

be left to mere inferences. But in this case the date of sale is specifically mentioned with sufficient clearness in another place also, namely, in the

left-hand corner at the top of the sale proclamation, though this is not the place allotted for its mention. ""Under these circumstances, it cannot be

said that the intending purchasers would have been in any way misled as regards the date, when the sale was to be held. The omission to mention it

in its proper place is no doubt an irregularity; but no evidence has been let in to show that any possible bidder was kept away, owing to his not

knowing the exact date of the sale, and the appellant has also not given any evidence to cannot the irregularities complained of, with the loss

alleged to have resulted, on account of such irregularities. The appellant''s case, as his counter-statement would show was not that the deficiency in

the price was due to those irregularities; but there was no justification for the resale at all, as the omission to pay the 3/4 of the sale price was not in

any way due to default on his part. The second objection must also be overruled.

As pointed out by Wallis, C.J., in Venkatachellamayya v. Nilakanta Girjee (1918) 41 Mad. 474 the provision in Order 21, Rule 71 is a salutary

one, intended to minimise the hardship resulting from the purchaser''s default and there is no reason why the Court should refuse to give effect to it,

unless the defaulting purchaser would be substantially prejudiced. As already mentioned, not even an attempt has been made to show that the

appellant was in any way substantially prejudiced in this case, on account of the omissions complained of.

In my opinion, the order of the Court below is right and this Civil Miscellaneous Second Appeal is dismissed with costs of the second

respondent.