Power of adjournment available only prior to the date of sale.

V. RAMASWAMI

This Letter Patent Appeal arises out of execution proceedings. The first respondent-plaintiff filed the suit O.S. 185 of 1971 on the file of the Subordinate Judge, Coimbatore, for the recovery of Rs. 16,000/- and obtained a decree for a sum of Rs. 24,195.14 including interest After giving credit to a sum of Rs. 16,711.25 paid by the judgment debtor, execution petition was filed on 11-8-1977 for execution of the decree by sale for recovery of a sum of Rs. 16,322.71. The decree-holder prayed for the sale of the cinema theatre, known as 'soundaram theatres' situate in S. No. 112/1B Perur Chettipalyam village, Coimbatore Dt. with all superstructures, doors, windows, and amenities, projector, rectifyer, transformer and amplifiers complete in running condition. The sale proclamation was settled giving the Amin's valuation at Rs. 96,500; decreeholder's valuation at Rs. 10,000, and the judgment-debtor's at Rs. 7,00,000, subject to encumbrance of Rs. 50,000, due under a mortgage. The upset price was fixed at Rs. 50,000, subject to the encumbrance. By an order dated 6-1-1978, the learned Subordinate Judge directed proclamation and sale of the property to be held on 8-3-1978. C.P. 556 of 1977 was adjourned to 13-3-1978. Proclamation was settled and on 1-3-1978, batta was paid by the decree-holder for issue of the sale warrant to the plaintiff to hold the auction sale on 8-3-1978. The sale warrant was given to the bailiff on 6-3-1978 with a direction to hold the sale on 8-3-1978 and return the warrant by 13-3-1978. It appears that on 8-3-1978 there was N.G.O. strike and therefore, though there were a few bidders, no sale was held and the Bailiff returned the warrant on 13-3-1978, without effecting the sale on 8-3-1978. It is stated that the judgment-debtor filed an application on 13-3-1978 to fix a fresh date for sale giving a long date; but that petition was rejected. Thereafter, the learned Subordinate Judge suo motu 'adjourned the sale' to 15-3-1978, and adjourned the E.P. to 23-3-1978. On 15-3-1978, the property was sold and the Second respondent was the successful bideer, his bid being Rs.1,50,000 subject to the mortgage. On 22-6-1978, when the E.P. was called, the sale was confirmed. In the meantime on 16-41978, the appellant herein (judgment-debtor) filed E.A. 702 of 1979 in E.P. 556 of 1977 in O.S. 185 of 1971, praying for setting aside the sale held on 15-3-1978, on various grounds mentioned therein and this petition was filed under O.21, R.90, C.P.C. Even earlier than that, on 27-3-1978, he filed I.A. 700 of 1978 praying for the same relief; but that petition was filed under S.47 read with S.151, C.P.C. Both those petitions were heard together and by an order dated 3-3-1982, the petitions were dismissed. As against the order in E.A. 702 of 1979, C.M.A. 53 of 1982 was filed on the file of the District Court, Coimbatore, and as against the order in I.A. 700 of 1978. C.R.P. 113 of 1982 was filed in this Court. Since the C.M.A. and the C.R.P. related to the same subject-matter C.M.A. 53 of 1982 on the file of the District Court, Coimbatore, was withdrawn, and was heard with C.R.P. 113 of 1982. C.M.A. 53 of 1982 was renumbered as C.M.A. 715 of 1983 on the file of this Court Both the appeal and the revision were dismissed. It is stated that as against the order in revision, an appeal in the Supreme Court is pending. As against the order in C.M.A. the present L.P. Appeal is filed.

2. The main contention of the learned counsel for the appellant is that the Court had no jurisdiction to adjourn the sale' and hold it on 15-3-1978, and that the Court could have only directed a fresh proclamation and fresh re-issue of warrant after fixing a fresh date for sale. That not having been done, the sale itself was void and illegal. The facts relating to this appeal are, as stated earlier, that batta was paid on 1-3-1978 for issue of same warrant to the Bailiff and the sale warrant was actually issued to the Bailiff on 6-3-197