Venkateswara Ettu Naicker vs Ayyammal and Others

Krishnaswami Nayudu, J.—This is an appeal against the order of the Subordinate Judge of Tuticorin in C. M. A. No. 8 of 1945 allowing

the appeal against the order of the District Munsif of Koilpatti in E. A. No. 233 of 1944 in O. S. No. 186 of 1939. The appellant is defendant 2,

defendant 1 being the father. In execution of a mortgage decree in O. S. no. 186 of 1939 the properties of defendants 1 and 2 were brought for

sale. Sale was held on 15th September 1943, respondent 1 here being the auction purchaser. The sale was confirmed on 18th October 1943. On

24th February 1944 the appellant filed an application u/s 47 and Order 21, Rule 90, Civil P. C., for setting aside the sale held on 15th September

1943. The grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2)

that there was no publication of the sale proclamation in the village as required by Order 21, Rule 67, Civil P. C., and (3) that the properties were

grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low

upset price fixed for the properties and that as a result of the undervaluation and fraud the petitioner has sustained substantial injury, in that the

properties worth several thousands have been sold for an inadequate and low price of Rs. 269. The learned District Munsif who heard the

application held that the sale was vitiated by fraud and irregularity, that there was no proclamation of the sale in the village and that the properties

were grossly under-valued and therefore allowed the application and set aside the sale. On appeal the learned Subordinate Judge remanded the

application for finding on certain matters. That order of remand was taken up in appeal to this Court in C. M. A. No. 694 of 1945 and Chandra-

sekhara Aiyar J. directed a further remand to the Subordinate Judge for a finding as to whether there was a proper proclamation or not and on the

question of absence of notice and undervaluation. The learned Subordinate Judge did not take any further evidence, but on the material on record

proceeded to record findings on the three points referred to him. The learned Subordinate Judge found that even though notice was not personally

served upon the appellant, he must have been kept informed of the proceedings by his father who is defendant 1 in the case. As regards

proclamation he held that there was no due proclamation. Regarding under-valuation he was of opinion that the valuation fixed by the Court was

not grossly inadequate and observed that it followed from the findings that the appellant has not suffered substantial injury on account of the

irregularity in the matter of publication. He also held that the petition was barred by limitation. The appeal against the order setting aside the sale

was allowed. This C. M. S. A. is against the said order.

Mr. Ramaswami Iyer, counsel for the appellant mainly contended that in view of the findings of both the Courts that there was no proclamation,

the sale held in such circumstances is void and is illegal and this is not a case where in the publication and conduct of the sale there were material

irregularities on which an application under Order 21, Rule 90 could be made. He argued that the application was u/s 47 and the making of the

proclamation being prior to the sale, the application must be deemed to be one u/s 47 and not under Order 21, Rule 90, Civil P. C. There are

concurrent findings of fact of both the learned District Munsif and the Subordinate Judge that there was no proclamation of sale. The learned

District Munsil finds that there has been no publication of sale proclamation as required by Order 21, Rule 67 read with Rule 54 (2), while the

Subordinate Judge holds that after examining the evidence that there has been no due proclamation. In the affidavit of the process-server who is

alleged to have made the proclamation, EX. D 8, it is stated as follows :

On 18th July 1943, I proclaimed by beat of tom tom the particulars of the sale by the Court of the properties mentioned in the proclamation of

sale at the village of Ayya Kottayur where the property is situated and tied one of the two copies of the proclamation and raised it on a pole fixed

in the garden No. 254 being Lot No. 1 of the property, paid Rs. 0-8-0 (eight annas) to the man who beat the drum, took his signature and took

the signature of the people resident in the place at the end. On 29th July 1943 the other copy was affixed to the Court notice board and the

signature of the process-server was obtained.

The process-server was examined as R. W. 2 and he deposed that he caused proclamation by tom tom by totti Suppan Pagadai and the

proclamation was attested by three persons Chinnaswami Nadar, M. A. N. Kamal Patcha and S. V. Chinnaswami Nadan. The totti who is

admitted to be alive was not examined, nor any of the three attesters, and the evidence of R. W. 2, the process-server, has not been accepted by

both the lower Courts, and the learned Subordinate Judge observes that :

The totti who is alleged to have beaten the tomtom is a fictitious person and the decree-holder made a farce of an attempt to summon him once or

twice, but he made no real attempt to get at him and examine him in Court, and that the appellant had not examined any of the attesters to the

attakshi to the sale proclamation.

In the end he concludes that there has been no flue proclamation of sale in the village. I am not inclined to disagree with these findings of fact by

both the Courts that there has been no proclamation. But it is contended by Mr. Subramania Pillai that the learned Subordinate Judge only says

that there has been no due proclamation. Apparently what he means is that there has been no proclamation in accordance with law. Under Order

21, Rule 66, Civil P. C., when any property is to be sold by public auction, the Court shall cause proclamation to be made in the language of such

Court, and under Rule 67 the proclamation shall be made and published as nearly as possible in the manner prescribed by Rule 64 (2). Rule 54 (2)

relates to attachment of properties and it directs that the order shall be proclaimed at some place on or adjacent to such property by beat of drum

or other customary mode. The mode by which the process-server, R. W. 2, is alleged to have made the proclamation has not been accepted by

the Courts, and that being the only mode mentioned it is not brought to the notice of the Court that it was proclaimed by any other mode. If in fact

it has been found that there has not been this publication by the mode prescribed by Rule 54 (2) and as alleged to have been made by R. W. 2, the

effect is that there has been no proclamation which is mandatory under Rule 66 of Order 21.

It has, therefore, to be considered whether a sale held without a proclamation as required under Order 21, Rule 66 could be said to be valid

and not void. There is the Bench decision of this Court in Jayarama, Iyer v. Vridhagiri Aiyar, 44 Mad. 35 : A. I. R. 1921 Mad. 583, where it was

held that :

Where 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 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 90, Civil P. C.

There is no difficulty in applying the proposition laid down in this case to the facts that arise in the present appeal, as there has been no

proclamation at all in the village.

Mr. Subramania Pillai relied on a decision in Bolla Subbanna Vs. Balanagu Satyanarayanamurti and Others, , where it was held that a sale

without fresh proclamation was not illegal or invalid and could be set aside only if substantial loss is proved since it is only an irregularity. In that

case, in execution of a decree the sale of properties was fixed on 31st March 1941. On that day the judgment-debtors had the sale adjourned to

30th June and waived fresh proclamation. Meanwhile the original decree-holder died and steps had to be taken to bring the legal representative on

record. The sale was adjourned to 7th July and again to 6th August when the sale was held. There was no fresh proclamation of sale. The case in

Jayarama Iyer v. Vridhagiri Iyer, 44 Mad. 35 : A. I. R. 1921 Mad. 583, was distinguished by the learned Judges in that case and the following

observation appears to be material:

If there was a proper proclamation to start with and only ground of attack is that the total period of adjournments exceeded the thirty days fixed in

the Madras rule as amended in 1936 and that the sale was held without a fresh proclamation, it appears to us that the sale cannot be held to be an

illegal one or a nullity and the sale will be set aside only if substantial loss is proved.

But here there was no proper proclamation at all, and in that case there was a waiver of fresh proclamation at one stage and again it was

adjourned and, in the meantime, the decree, holder died and the legal representatives was brought on record and for the adjourned sale there was

no fresh proclamation. To similar effect is the decision cited on behalf of the respondent, viz., Nripati Nath Bhattacharjee Vs. Jatindra Kumar Das,

. There is one distinction between the proclamation that has to be made under Rule 66 and a fresh proclamation under Rule 69 of Order 21. With

reference to the proclamation that is to be made under Rule 66 the Court shall cause the proclamation to be made, whereas under Rule 69 (2) if

the judgment-debtor consents to waive it, there could be a sale without a fresh proclamation. No such latitude is given under Rule 66. Even the

consent by judgment-debtor could not waive a proclamation provided for under Rule 66 which is obligatory. As pointed out by Seshagiri Aiyar J.

in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : AIR 1921 Mad. 583 it is no doubt not easy to draw the line between irregularity and illegality,

but where a substantial provision of law has been violated as in this case Order 21, Rule 66 the sale should be regarded as having been illegally

conducted. The object of Order 21, Rule 66 is to afford a security for the fairness of public sales, that it has been properly published and that it

would attract purchasers. But if the specific provision as to proclamation is violated, there could be no doubt that the sale cannot be allowed to

stand. It can not be said that the total failure to make the proclamation under Order 21, Rule 66 is a mere irregularity in the publication or conduct

of the sale. In view of the decision in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : A. I. R. 1921 Mad. 683 and on the findings of fact of both

the Courts, the sale held on 15th September 1943 must be held to be illegal and void and cannot be allowed to stand and is, therefore, liable to be

set aside.

A further point was argued on the question of limitation. It is conceded that if it is an application under Order 21, Rule 90 the provisions of

Article 166, Limitation Act would apply i. E., an application should be filed within 30 days from the date of sale. But in the view that I am now

taking that the sale itself is illegal and void, Article 166 would have no application and residuary Article 181 would be the provision that would be

applicable to an application of this nature, i.e., three years from the time when the right to apply accrues. If Article 181 is applied, the application is

within time.

It is also argued by learned counsel for the respondent that the sale if at all is set aside could be set aside only as regards the share of the

applicant and not in respect of the share of defendant 1 who has not preferred an application for setting aside the sale. But since the sale itself has

been held to be an illegality I do not think that any such distinction could be made and the sale in its entirety must be deemed to be void and is,

therefore, set aside, This point as to the void nature of the sale does not appear to have been argued in the lower Court and has been raised for the

first time by Mr, Ramaswami Aiyar. But since it is a point of law I have allowed him to argus it. In the circumstances of the case, the appeal is

allowed and the order of the trial Court is restored, but there will be no order as to costs in this appeal and in the lower appellate Court. Leave

refused.