Quoting of wrong provision of law not fatal.

This appeal is directed against the order passed in E. A. No.223/84 in E. P. No.17 of 1989 in O.S. No.19/68 on the file of the First Additional Sub-Judge, Pondicherry.

2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows:-

The appellants herein filed the application E.A. No.223 of 1984 under O.21, R. 90, Code of Civil Procedure, praying for setting aside the auction sale held on I6-2-84 by the advocate-commissioner. The first respondent filed E.P. No.17 of 1980 for appointment of a commissioner for sale of the properties in pursuance of the decree passed in O.S. No.19 of 1968 in which the suit properties were directed to be sold in Court auction and the sale proceeds be divided between the parties. Accordingly a commissioner was appointed for the purpose of holding public action. The Commissioner by his notice fixed the date of auction-sale as 16-2-84 and effected publication in "Daily Thanthi", Cuddalore and in "New Times Observer", Pondicherry. Accordingly the auction was held on 16-2-84 in the Central Nazir Office, District Court, Pondicherry. The Commissioner filed two reports, one interim report on 20-2-84 and another final report on 7-3-84. The said auction sale is challenged on the ground that there was no proclamation of sale made as required under law. In the absence of proclamation of sale as per the Code of Civil Procedure, the auction sale has to be held vitiated. The upset price fixed by the Commissioner is not in accordance with law. It is further stated that the claim of set off in respect of the first respondent allowed by the Court in E.A. No.106 of 1984 is illegal as no notice was given to the appellants. Hence, they prayed for setting aside the sale.

3. The said application was resisted by the first respondent who would contend that the Commissioner has evolved his own procedure for auction of the properties and that the holding of the auction by the Commissioner on 16-2-84 received wide publicity. Further, the appellants cannot plead ignorance of the conduct of auction and the rules framed by the commissioner for the auction as they are also deemed to be decree-holders since the decree was passed in the partition action. The Court has approved all the acts done by the commissioner and the auction has been conducted by the commissioner on 16-2-84 strictly in accordance with law. The first respondent is entitled to have set off as per orders passed in E.A. Nos, 106 and 107 of 1984 and that there is no fraud or irregularity as alleged by the appellants in the matter of conduct of the sale. Hence he prayed for dismissal of the application.

4. On the side of the appellants, the first appellant examined himself as PW 1 and no exhibit was marked on the side of the respondents. The Sub-Judge for the reasons assigned in his order dismissed the application with costs. Aggrieved by the same, this appeal is filed.

5. The learned counsel for the appellants, Mr. T.R. Rajagopalan, mainly submitted that upset price for each of the properties sold by the Commissioner was fixed by him arbitrarily without notice to the appellants. Further, there was no proof of publication of the sale which is a condition precedent for the conduct of the sale in question. Even according to the Commissioner, the conditions of sale were given only to the bidders at the time of auction. The present proceedings arose under the Partition Act and hence the leave granted by the Court to bid and set off in favour of the first respondent is illegal and not according to law. The learned counsel mainly contended that since no proclamation was drawn up by the Court, the entire sale is a nullity. On the other hand, the learned counsel for the first respondent would submit that actually notice of the application filed by the first respondent for permission to bid in E. A. No.185/82 was given and after hearing both the parties, the petition was allowed on 2-7-82. The petition filed by the first respondent