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1876 Supreme(SC) 12
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. AND SIR SMITH, AND SIR ROBERT P. COLLIER.
GIRDHARI SINGH - Appellant
Versus
HURDEO NARAIN SINGH - Respondents
On Appeal From The High Court at Bengal
Decided On : May 18, 19, 1876.
Agent for Appellant: T. L. Wilson.
Agents for Respondent: Henderson & Co.
A judgment debtor waives the right to object to irregularities in a sale notification if they request a postponement of the sale on the express condition that the existing notification be maintained.
Headnote:(A) Act VIII of 1859 - Sections 249, 256, 257 - Sale in execution of immovable property - Confirmation of sale - Material irregularity in notification - Waiver of right to object - A sale of immovable property does not become absolute until confirmed by the Court. An application to set aside the sale on grounds of material irregularity must be made within thirty days and prove substantial injury. If objections are disallowed, the Court is mandated to pass an order confirming the sale. (Paras 1, 2)
(B) Act VIII of 1859 - Sections 376 and 378 - Review of judgment - A review of a judgment cannot be granted without previous notice to the opposite party to enable them to be heard in support of the decree. (Para 3)
(C) High Courts Act - Section 15 - Superintendence - The High Court, in its supervisory jurisdiction, may order a lower court to perform a statutory duty it failed to execute, such as confirming a sale after rejecting objections. (Para 4)
(D) Waiver - Where a judgment debtor requests a postponement of a sale on the express condition that the existing attachment and notification of sale be maintained, such a request constitutes a waiver of the right to object to clerical errors or irregularities in said notification. (Para 5)
Facts of the case:
A decree for possession and mesne profits led to the attachment and sale of the judgment debtor's interest in certain lands. The sale notification contained a clerical error regarding the government revenue assessed on the estate. Prior to the sale, the judgment debtor had requested a postponement of the sale, specifically agreeing that the existing notification of sale be maintained. After the sale, the judgment debtor objected to the sale based on the revenue error. The subordinate judge initially rejected the objections but failed to pass a confirmation order. Subsequently, upon a review petition, the subordinate judge set aside the sale citing the revenue error and an inadequate price. The High Court reversed this decision and ordered the confirmation of the sale.
Findings of Court:
The error in the government revenue was an irregularity that could typically be grounds for setting aside a sale if substantial injury were proven. However, because the judgment debtor had specifically requested a postponement while agreeing that the notification be maintained, he was precluded from later challenging the notification. The High Court's order to confirm the sale was a valid direction to the lower court to perform the duty it should have performed upon the initial rejection of objections.
Issues: Whether the error in the sale notification regarding government revenue was a material irregularity sufficient to set aside the sale given the debtor's prior conduct, and whether the High Court had the jurisdiction to order the confirmation of the sale.
Ratio Decidendi: A judgment debtor who consents to the maintenance of a sale notification while seeking a postponement of the sale is deemed to have waived the right to object to irregularities in that notification. Furthermore, the High Court may exercise its supervisory jurisdiction to direct a lower court to confirm a sale when the lower court has already disallowed objections but failed to pass the required confirmation order.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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execution of decrees
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sale of immovable property
- confirmation of sale
- irregularities in sale notification
- setting aside sale
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sale of immovable property
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civil procedure
- review of judgment
- supervisory jurisdiction
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execution of decrees
Judgement
APPEAL from an order of a Division Bench of the High Court (March 11, 1873), reversing an order of the subordinate Judge of Bhagulpore (November 9, 1872), whereby a sale in execution of the Appellants lands was confirmed.
On the 10th of April, 1871, one Mrs. Collis recovered against the Appellant a decree for possession as lessee of a certain portion of a mouzah called Mampore Bhalkora, with mesne profits to the amount of Rs.32,818. She thereupon applied for execution of her decree by having possession of the lands given, and satisfaction of her claim for mesne profits by attachments and sale of the Appellants interest as zemindar in the said lands. The attachment was granted, and a notice was issued on the 30th of May, 1872, fixing the 5th of August following for the sale. On that day the Appellant petitioned the subordinate Judge for a postponement of the sale for one month, to enable him to complete certain negotiations to raise money to pay off his debts on the terms of " the attachment and the notification of sale being maintained." On this petition the following order was made " It is ordered that the postponement be granted; that in case of non payment of the decretal amount the property of the judgment debtor be sold without the issue of a second notification of sale on the 2nd of September, 1872; and that a copy of the notification be suspended in a conspicuous place of the Court-house." The execution case was struck off the file on the 5th of August, re-stored thereto on the 28th, the sale being at the same time ordered to take place on the 2nd of September, 1872; on which day the Appellant obtained a further postponement for one week. On the 9th of September the money due not having been paid, the Appellants interest was put up to sale by auction and knocked down to the Respondent as the highest bidder.
The subsequent proceedings are sufficiently set forth in the judgment of their Lordships.
The High Court {Kemp and Pontifex, JJ.) in reversing the order of the subordinate Judge concluded as follows —
"Now what are the alleged irregularities? First, that the sale was twice postponed, but no fresh proclamations were issued. On this we may observe that the postponements were made, not for any indefinite period, when perhaps it would be necessary to issue a fresh proclamation, but for short periods upon the request of the debtor, who applied for time to enable him to raise the money due under the decree, and on the distinct understanding that the attachment and proclamation were to subsist and not to be renewed.
" The error as to the sudder jumma was, if an error at Ali, and of this there is no evidence, an error in favour of the judgment debtor, for if the sudder jumma was quoted at a lower figure in the proclamation than the recorded sudder jumma, it was not a material error likely to depreciate the bids, but rather to stimulate the bidders at the sale, for intending purchasers could refer to the towji; moreover, this objection was overruled by the subordinate Judge.
" As to the alleged inadequacy of price, this would not affect the regularity of the sale proceedings. There is also no evidence whatever that the price paid is an inadequate one. It is clear that under sect. 257, if an application is made, such as is contemplated in sect. 256, to set aside the sale on the ground of any material irregularity in publishing or conducting the sale, and such application and the objections be disallowed, the Court shall pass an order confirming the sale. It was, therefore, the duty of the subordinate Judge, when he rejected the application and overruled the objections of the debtor, to pass an order confirming the sale which had become absolute, and to grant a certificate to the auction purchaser under sect. 259.
" The subordinate Judge had no jurisdiction to reverse the sale on precisely the same objections which he had previously overruled, and which we have shewn were not material, and did not substantially injure
