Substantial injury must be proved to set aside a sale due to irregularities in the sale proclamation and the hour of the sale.

1. This appeal has been preferred by the 13th defendant and is directed against the lower Court's order rejecting his application to set aside the sale held on 30.5.1955 in execution of the decree in O.S. 90 of 1123 of that Court. The grounds urged are that the sale was adjourned to a date beyond 30 days and was held without fresh proclamation as contemplated under O. XXI, R.69(2) of the Civil Procedure Code, that the proclamation did not show the hour at which the sale was to be held as required under the law, that the amount directed to be deposited by the decree-holder-auction-purchaser for payment to an attaching decree-holder was not deposited on the day fixed but only on a later day and that material prejudice was caused by the irregularities in the sale.

2. First of all, we will deal with the question whether the sale is liable to be set aside because it was held beyond 30 days and without a fresh proclamation. O. XXI, R.69(2) states that when a sale is adjourned under sub-r. (1) for a longer period than 30 days a fresh proclamation under R.67 shall be made unless the judgment-debtor consents to waive it. Here clearly there was no waiver. But the sale, it is pointed out by the respondent's counsel, was held on the re-opening day after the holidays, the 30th day expiring during the vacation. While on behalf of the appellant it is contended that the non-compliance with the rule made the sale a nullity on behalf of the respondent what is urged is that if at all it is only a material irregularity which will make the sale liable to be set aside on proof of substantial prejudice. With regard to this Chitaley in his commentaries under O. XXI, R.69, Note (8) observes as follows:

"The omission to issue a proclamation as required by Rule amounts to a mere irregularity and a sale will not be set aside in the absence of proof of substantial injury."

In one of the decisions referred to therein, namely Jatindra Mohan v. Mahipal (AIR 1948 Calcutta 203) it was pointed out that where material prejudice was not proved such a sale would not be vitiated. At page 204 it is observed as follows:

"In our judgment, however, non-issue of a sale proclamation when the law required the publication of a 'fresh sale proclamation stands on the same footing as the non-service or suppression of service of a sale proclamation in the matter of the reversal of a sale. They would be material irregularities and would not affect the jurisdiction of the executing Court to hold the sale. The adjournment of a sale beyond a month without publishing a new sale proclamation would stand on the same footing."

As pointed out by the counsel for the respondent, Mulla also in his commentaries under O.XXI, R.90, dealing with material irregularity in publishing or conducting a sale states that sales like the one with which we are here concerned can be set aside only if substantial loss is proved as the non-compliance with the provision amounted only to a material irregularity. Reliance is placed on the decision of the Privy Council in Rang Lal Singh v. Ravaneshwar Pershad Singh (ILR 39 Calcutta 26). There it was held in the case of a similar sale that as substantial injury had not been proved it was not liable to be set aside. In the present case no evidence at all was adduced by the appellant to prove material prejudice sufficient opportunity having been granted for the said purpose. So the lower court's order cannot be challenged on the aforesaid ground.

3. Coming to the objection based on the ground that the hour of the sale was not shown in the proclamation as to whether there was not sufficient notification of the hour is a matter which ought to have been proved by definite evidence. It has not been done so here. This point was not even specifically raised in the memorandum of appeal. Even if there was an omission to specify the hour as contemplated under O. XXI, R.66(2) it would amount only to a material irregularity which would make the sale liable to be set