Irregularity in the publication falling within the scope of order 21, rule 90 C. P. C.

V. Ratnam, J.

1. The judgment-debtor in O.S. No. 34 of 1970, Sub-Court, Erode, is the petitioner in this civil revision petition, which is directed against the order of the Courts below, dismissing an application filed by the petitioner here in to declare the Court-auction-sale held on 3rd January, 1974 as void. On 28th November, 1970, one Perumal Gounder, the husband of the second respondent and father of respondent 3, herein, obtained a decree in O. S. No. 34 of 1970, against the petitioner for the recovery of a sum of Rs. 5,000 with interest at 6 1/4 per cent, per annum from 25th November, 1967, till 28th November, 1970 and thereafter at 6 per cent, per annum till the date of realisation and costs. This decree was put into execution in E.P. No. 40 of 1973 in O.S. No. 34 of 1970 and the decree-holder prayed for the realisation of the amounts due under the decree by the sale of certain properties belonging to the petitioner. In the course of those proceedings the petitioner, though served with notice, did not appear but remained ex parte. In the sale proclamation, the value of the properties sought to be proceeded against was given by the decree-holder as Rs. 3,000, while the Amin had valued it at Rs. 10,000 subject to an usufructuary mortgage and since the petitioner had remained ex parte, initially, the Court fixed the upset price at Rs. 10,000. Later, on an application filed by the decree-holder in E.A. No. 750 of 1973 in E.P. No. 40 of 1973, the upset price originally fixed at Rs. 10,000 was reduced by order, dated 23rd October, 1973 to Rs. 7,500. It is now common ground that notice of this application was not given to the petitioner. Thereafter, the properties were sold on 3rd January, 1974 and purchased by the auction-purchaser 1st respondent herein for Rs. 7,505, subject to the encumbrance referred to earlier. On 24th April, 1974, the petitioner filed E.A. No. 610 of 1974 in E.P. No. 40 of 1973 in O.S. No. 34 of 1970, Sub-Court, Erode, praying that the Court sale held on 3rd January, 1974, should be declared void. According to the case of the petitioner, he became aware only on 5th February, 1974, about the sale of his properties in court-auction on 3rd January, 1974 and the sale in favour of the 1st respondent, herein is void and affected by irregularities and fraud in the publication and conduct of the same. The properties sold, according to the petitioner, are first class nanja lands of the value of Rs. 10,000 per acre and that properties worth Rs. 35,000 had been sold only for Rs. 7,505 and the gross inadequacy of the price of the properties sold would indicate the fraudulent nature of the sale. The petitioner also complained of an omission to mention two wells in the sale proclamation which, according to him, constituted a material irregularity. No publication of the proposed sale by tomtom was made in the village, according to the petitioner. The petitioner further stated that though originally the upset price was fixed at Rs. 10,000, subsequently, that had been reduced to Rs. 7,500, without notice to the petitioner and that such reduction in the upset price is a material alteration in the sale proclamation without notice to the petitioner and the same would be a material irregularity, which would vitiate the entire sale. The petitioner claimed that these irregularities would fall within the scope of Section 47 of the Code of Civil Procedure and prayed that the sale held on 3rd January, 1974, should be declared void.

2. This application was resisted by the decree-holder on the ground that the petitioner was fully aware of the Court-auction-sale even before the date of sale and that the sale was perfectly valid and binding on the petitioner. The proceedings and the sale had been properly conducted as required by law, according to the decree-holder and there was no irregularity or fraud in the conduct of the sale as claimed by the petitioner and that the properties were only dry lands and they have been sold sub