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Judges : S.VELU PILLAI,T.S.KRISHRIAMOORTHY IYER
NARAYANAN NAMBUDIRIPAD - Appellant
Versus
THOMMAKUTTY - Respondent
Case No : C. R. P. No. 1140 of 1964
Decided On : 10/14/1966
Advocates Appeared :
C. S. Narayanan; For Petitioner V. Sankara Menon; K. K. Kurup; Smt. Madhuri Latha; For Respondents
Court Sale - Proclamation and Conduct - Order 21, Rule 67, CPC - The court sale held in contravention of the provisions of Order 21, Rule 67(1), CPC is not without jurisdiction and is not null and void. Failure to comply with the provisions of a statute may vitiate the proceedings. A sale held in contravention of the provisions of Order 21, Rule 67(1), CPC is not without jurisdiction and is not null and void. Such a sale is not void and inoperative but only voidable. The court sale which is only voidable on account of the contravention of any of the rules prescribed but not void may also be illegal in one sense. If on account of breach of any provision which relates to the publication or conduct of the sale, the court sale can be said to be void and not merely voidable, there is no scope for applying Order 21, Rule 90, CPC. To declare such sales void, Section 47, CPC has to be invoked, as is now held to be necessary in the decisions of this Court in Cheria Chacko v. Kumaran Kesavan 1962 KLT. 848 and Ammukutty Amma Malathy Amma v. Varu Jos 1963 KLT. 635. On the other hand, if the court sale has to be set aside by an order on account of contravention of any prescribed rules for publication and conduct of the sale, it has to be done only by an application under Order 21, Rule 90, CPC.
Fact of the Case:
The decree holder auction purchaser is the revision petitioner. In execution of the decree, the decree schedule properties were sold in court auction and purchased by the decree holder for Rs. 154.37 in satisfaction of the decree. The respondents, who are the judgment-debtors, filed an application under S.47 and 151 and 0.21, rule, 90, C. P, C. to set aside the court sale. The execution court held that in view of the omission to affix the proclamation of sale in the property sold and the omission to publish the same by beat of drum, there was material irregularity and fraud in publishing and conducting the sale as a result of which the respondents sustained substantial injury. The learned Munsiff also took the view that the application to set aside the sale filed was not barred by limitation as the respondents were entitled to the benefit of S.18 of the Limitation Act. The learned District Judge though concurred with the learned Munsiff in setting aside the sale took the view that the omission to affix the proclamation of sale on the property sold and the omission to publish the same by beat of drum is not a mere irregularity in the publication or conduct of the sale but would render the sale illegal or void and it is open to the judgment-debtor to have the court sale declared illegal or void by an application filed under S.47, C. P. C. which will be governed by Art.181 of the Indian Limitation Act.
Finding of the Court:
The court sale held in contravention of the provisions of Order 21, Rule 67(1), CPC is not without jurisdiction and is not null and void. Such a sale is not void and inoperative but only voidable. The court sale which is only voidable on account of the contravention of any of the rules prescribed but not void may also be illegal in one sense. If on account of breach of any provision which relates to the publication or conduct of the sale, the court sale can be said to be void and not merely voidable, there is no scope for applying Order 21, Rule 90, CPC. To declare such sales void, Section 47, CPC has to be invoked. On the other hand, if the court sale has to be set aside by an order on account of contravention of any prescribed rules for publication and conduct of the sale, it has to be done only by an application under Order 21, Rule 90, CPC.
Issues: The point for decision was whether the court sale held on a specific date is void or only voidable on account of the omission to proclaim the sale of property by beat of drum and to affix the proclamation in a conspicuous part of the property.
Ratio Decidendi: A sale held in contravention of the provisions of Order 21, Rule 67(1), CPC is not without jurisdiction and is not null and void. Such a sale is not void and inoperative but only voidable. The court sale which is only voidable on account of the contravention of any of the rules prescribed but not void may also be illegal in one sense. If on account of breach of any provision which relates to the publication or conduct of the sale, the court sale can be said to be void and not merely voidable, there is no scope for applying Order 21, Rule 90, CPC. To declare such sales void, Section 47, CPC has to be invoked. On the other hand, if the court sale has to be set aside by an order on account of contravention of any prescribed rules for publication and conduct of the sale, it has to be done only by an application under Order 21, Rule 90, CPC.
Final Decision: The order of the learned District Judge is set aside and the case remanded to his file for fresh disposal treating the application filed by the respondents as one under Order 21, Rule 90, CPC.
1. The decree holder auction purchaser is the revision petitioner. In execution of the decree the decree schedule properties were sold in court auction on 6 21951 and purchased by the decree holder for Rs. 154.37 in satisfaction of the decree. The court auction was confirmed on 10 31961. The respondents who are the judgment-debtors filed an application on 20 31961 under S.47 and 151 and 0.21, rule, 90, C. P, C. to set aside the court sale. The execution court held that in view of the omission to affix the proclamation of sale in the property sold and the omission to publish the same by beat of drum there was material irregularity and fraud in publishing and conducting the sale as a result of which the respondents sustained substantial injury. The learned Munsiff also took the view that the application to set aside the sale filed on 20-3-1961 was not barred by limitation as the respondents were entitled to the benefit of S.18 of the Limitation Act. The learned District Judge though concurred with the learned Munsiff in setting aside the sale took the view that the omission to affix the proclamation of sale on the property sold and the omission to publish the same by beat of drum is not a mere irregularity in the publication or conduct of the sale but would render the sale illegal or void and it is open to the judgment-debtor to have the court sale declared illegal or void by an application filed under S.47, C. P. C. which will be governed by Art.181 of the Indian Limitation Act.
2. Both the lower courts have found that a copy of the proclamation was not affixed to a conspicuous part of the property and there was no publishing of the proclamation by beat of drum. 0.21, R.67 of C. P. C. reads thus:
" (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by R.54, sub-rule (2).
(2) Where the court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court otherwise be given."
Order 21 R.54, clause (2) reads thus:
"The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house and also in the Village Office or in case there is no such office in the Taluk Office of the place in which the land is situate and where the property is situated within the limits of a Municipality or Panchayat in the office of the Municipality or Panchayat within the limits of which the property is situate."
Order 21, R.67, C. P. C. prescribes only the manner in which the sale should be proclaimed. On a careful consideration of the above provisions it will be seen that the affixing of a copy of the proclamation on the property to be sold should be done at the time the sale is proclaimed by beat of drum and the affixing of the copies of the proclamation of sale in the court-house. Village Office, etc, has to be after the publication on the property. This is clear from the use of the word 'then' in 0.21, R.54, sub-clause (2), C. P. C. The question raised in the appeal before us is what is the legal effect of an omission to publish a proclamation of sale by affixing the same on a conspicuous part of the property and the failure to proclaim the same at some place on the property or adjacent to the property. The learned advocate for the revision petitioner contended that such omission will be only irregularities in publishing and conducting the sale and the appropriate remedy of the judgment-debtor is to have the court sale set aside by an application under 0.21, R.90. C. P. C. by provin
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