ORDER

1. The finding of the High Court is that there was no pubfication whatsoever of the proclamation of sale. If that is so, there can be no doubt that the sale is void and Section 47 is, therefore, attracted. Shri T. S. Krishnamurthy lyer, learned counsel for the appellants argues that Order 21 Rule 90 is attracted and not Section 47. He relies on the case S. A. Sundararajan v. A. P. V. Rajendran. {(1981) 2 SCR 600} We have perused the decision. It is a case which clearly dealt with irregularities in the settling of the proclamation of sale and not a case of non-publication of the sale proclamation. Shri T. S. Krishnamurthy lyer particularly invites our attention to the following observations of the court : (SCC p. 721, para 6)

It may be pointed out that when Rule 90 of Order 21 employs the expression "in publishing or conducting the sale", it envisages the proceeding commencing after the order for sale made under Rule 64 of the Order 21. The provisions after Rule 64 are provisions relating to publishing and conducting the sale. Setting the proclamation of sale is part of the proceeding for publishing the sale.

2. These observations only mean that on (sic) proceedings prior to the stage of Order 21 Rule 64 do nor relate to publishing and conducting the sale and not that proceedings subsequent to the stage of Order 21 Rule 64 will only attract Order 21. Rule 90 and not Section 47. We do not see how a sale held without any publication whatsoever can possibly be held to be a sale which is not void.

3. The case of Srikakida Chinna Venkatanarayana v. Pannapati Elias {AIR 1954 Mad 1024, 1026) deals with the question of non-publication of sale. Rajamannar, C.J. after referring to the observations of Justice Seshagiri Aiyar in an earlier case observed as follows :

Sheshagiri Aiyar, J. was of the opinion that the Code itself gave some indication as to when a sale can be regarded as irregular and when illegal. He thought that on the languase of Order 21 Rule 90, where there was no publication or conduct of the sale, the sale should be regarded as illegal. On the facts of the case before him, his conclusion was that in effect there had been no publication at all.

We are not now concerned with the correctness of the decision insofar as it held that on the facts of the case there had been no publication at all. The value of the decision, in my opinion, lies in the enunication of the general principal that where there is no publication or conduct of the sale, then it is not a case of mere irregularity. It is as if a sale had not been held at all within the meaning of the Code. If there was no publication of the sale whatever, at any place or in any manner, but some officer of the court chose to hold a sale at some places on some date, it cannot be said there has been a material irregularity or fraud in publishing a sale.

Likewise it follows from this if there is in effect no conducting of the sale it would not be a case of material irregularity in conducting it. Suppose the selling officer does not conduct an auction but merely takes a private offer and reports to the court that the property has been sold to the person making that offer. Can it be said that there has been a conduct of the sale ? I think not. Following the principal of this decision and the decision of Krishnaswami Nayudu, J. In Venkateswara Ettu Naicker v. Ayyammal and on the concurrent findings of the courts below that there was no publication of the sale whatever, I hold that there has been no sale at all under the Code and the alleged sale was a nullity.

4. We entirely agree with what has been said by the learned Chief Justice in the above decision. The civil appeal is dismissed with costs.

For Citation : 1987 (Supp) SCC 124.