Judgement

28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re.

Appeal (No. 8 of 1942) from a judgment and decree of the High Court (January 23, 1940) reversing a judgment and decree of the court of the Subordinate Judge of Ellore (April 16, 1937).

The following facts are taken from the judgment of the Judicial Committee. This appeal arose out of an application by the appellant, who was a judgment-debtor, to set aside a court sale of six items of property belonging to him which had been sold in execution of the decree in Original Suit No. 38 of 1919 in the Court of the Subordinate Judge of Ellore, obtained against him by the first respondent, the decree-holder. This appeal related only to three items of the properties, being items 4, 5 and 6, specified in the sale proclamation. At the sale the properties were purchased by the decree-holder himself. The application to set aside the sale was made under Or. 21, r.90, of the Code of Civil Procedure, which empowered the court to set aside a sale on the ground of a material irregularity or fraud in publishing or conducting it. That power of the court was subject to the proviso that no such sale be set aside on the ground of irregularity or fraud unless " upon the facts proved the court is satisfied that the applicant " has sustained substantial injury by reason of such irregularity " or fraud."

The Subordinate Judge of Ellore, to whom the application had been made, set aside the sale on the grounds that the sale proclamation did not mention the revenue assessed on the properties as required by Or. 21, r. 66, sub-s. 2 (6), and that the sale proclamation was not published in the collectors office as required by Or. 21, r. 54, read with r. 67, of the Code of Civil Procedure, and that as a result of those irregularities the appellant had suffered substantial injury in that the sale prices were unreasonably low. The High Court of Madras (Wadsworth and Patanjali Sastri JJ.) reversed that decision by its order dated January 23, 1940, holding that in the circumstances of the case the omission to mention the Government revenue was not a material irregularity; and that the failure to affix the sale proclamation in the collectors office, though it was an irregularity, caused no substantial injury to the appellant. This appeal was brought against the above decision of the High Court. Besides the irregularities referred to, the appellant had also alleged fraud in his petition, but both the courts in India found that no fraud had been committed.

The question for determination in this appeal was whether or not the appellant was entitled to set aside the court sale by reason of the above mentioned irregularities.

1945. June 7, 11. Khambatta for the appellant. Both the failure to state in the sale proclamation, as required by Or.21, r. 66, sub-r.2 (6), of the Code, the revenue assessed on the properties to be sold, and the failure to affix the sale proclamation in the collectors office, as required by Or.21, r. 54, read with r. 67, are material irregularities in the conduct of the sale by public auction. Both of those omissions have been held by the Board, even independently, to be serious defects, and the appellant is entitled to succeed on either of them. It is the duty of the court to see that the provisions of the Code regarding the sale proclamation are carried out Marudanayagam Pillai v. Manickavasakam Chettiar (( 1944) L. R. 72 I. A. 104.). The importance of having the proclamation affixed in the collectors office is that it would be only there that any intending purchaser would expect to find the revenue payable on the lands or their probable value. Tekait Krishna Prasad Singh v. Moti Chand (( 1913) L.

R. 40 I.A. 140 ,144.) shows the importance which is attached to the requirement in the Code for the fixing of the proclamation. The present case is not as strong as Girdhari Singh v. Hurdeo Narain Singh (( 1876) L. R. 3 I. A. 230.) because here it is no