Material irregularity in sale proclamation publication does not render the sale illegal or void, and substantial injury must be proven by the judgment debtor to set aside the sale.

1. This is an appeal filed by the decreeholder-purchaser against the order dated 10th January 1957, of the learned Subordinate Judge, Meenachil, setting aside the sale held on 21-2-1956, in execution of the decree in O. S.192 of 1954.

2. The first defendant filed an application under order XXI R.90 C. P. C. to set aside the sale on the ground of material irregularity and fraud in publishing and conducting the sale. The subject matter of the sale was one half of Oodukkur right in 7 acres 94 cents of land and a building standing thereon. It was alleged by the first defendant that the sale was conducted on 21-2-1955 without proper notice and that the decreeholder himself purchased the property for Rs. 9458-0-0. Allegations of fraud and material irregularity in the conduct or publishing of the sale were also made by the first defendant. The first defendant also contended that as the publication of the intended sale was made in "Kerala Bhooshanam" only on the date of the actual sale, namely 21-2-1956 the sale is illegal and void. The application was contested by the decree holder purchaser (the Appellant herein) on the ground that there was no material irregularity or fraud in the publishing or conduct of the sale and that in any event no substantial injury has been caused to the first defendant.

3. The first defendant appears to have taken out a commission to assess the value of the properties and the Commissioner has valued the properties both on the basis of yield, as also on the basis of the estimated market value. On the basis of yield, the properties were valued in the sum of Rs. 9879-12-4, and on the latter basis, they were valued at 11,289-10-8. The first defendant did not adduce any evidence to challenge the valuation of the Commissioner and, in the absence of any other evidence to the contrary, the valuation arrived at by the commissioner was rightly accepted by the learned Subordinate Judge. The learned Subordinate Judge has also held that the price fetched at the sale namely Rs. 9,458/- cannot be said to be by any means low or inadequate and that the first defendant cannot be said to have sustained any substantial injury.

4. The main ground of attack on behalf of the first defendant was that the sale itself is illegal and void by reason of the contravention of Order XXI R.67 (2) C. P. C. in view of the fact that the newspaper publication in'Kerala Bhooshanam' was only on 21-2-1956, the actual date of sale. The learned Subordinate Judge was impressed by this contention and has held that this amounts to a contravention of Order XXI R.67 (2) of the C. P. C. and therefore, the sale so held was illegal and in this view the lower court set aside the sale.

5. Before us, the learned counsel for the Appellant has contended that the non-compliance with the provisions of Order XXI R.67 (2) C. P. C. will, at the most, amount only to an irregularity which may give a right to the judgment-debtor to file an application under Order XXI R.90 C. P. C. and that the learned Subordinate Judge was wrong in setting aside the sale especially in view of his finding that the judgment debtor has not sustained substantial injury.

6. Order XXI, R.67 (1) provides that every proclamation shall be published as nearly as may be, in the manner prescribed by R.54 sub-rule 2. It is not the case of the first defendant that the procedure mentioned therein has not been followed. Clause.2 of the said rule further provides that such proclamation shall also be published in the official Gazette or in a local newspaper or in both in cases where the court so directs. In this case, by virtue of this provision the court appears to have directed the publication of the sale proclamation in a local newspaper namely, Kerala Bhooshanam. There is no dispute that the said publication was made only on 21-2-1956.

7. The question that arises for consideration is whether this publication of the sale proclamation in the newspaper only on the date of sale, amounts to a mat