Powers of selling officer.

These appeals arise out of the order of the, Subordinate Judge of Sivaganga in E.P. No. 100 of 1949 in O.S. No. 53 of 1949, dated 16th July, 1952. It is a matter of some doubt whether the order in question is one that comes directly under the provisions of section 47 of the Civil Procedure Code; but in any event there is the Civil Revision Petition filed alternatively and if we are convinced that the learned Judge has not exercised the jurisdiction vested in him by law, then we have to set it aside.

In execution of the decree in O. S. No. 53 of 1949 in the Sub-Court, Sivaganga, three items of properties were attached before judgment and they were proclaimed for sale to be held on 17th June, 1952. The order of the Court to the officer conducting the sale was to the effect that he should sell in auction sufficient portions of the properties attached before judgment on 17th June, 1952, and that he should certify the manner in which the auction was held and if none was held, the reason for the same and return the warrant on or before the 23rd June, 1952. The sale warrant is therefore clear that the sale was to be held on 17th June, 1952, and the warrant has to be returned to the Court on or before the 23rd June, 1952. According to the details contained in the sale list it is found that the sale commenced on 17th June, 1952. From 16th June, 1952, the Subordinate Judge was on casual leave and he rejoined duty only on 25th June, 1952. During that period of casual leave there were three holidays, viz., the 21st, 22nd and 24th June, 1952. The sale list shows that the sale was commenced on 17th June, 1952, was continued on 18th June, 1952, 19th June, 1952, 20th June, 1952, and 23rd June, 1952, and on 25th June, 1952, there were two bidders for items 1 and 2 and the same were sold to one Unnamalai Achi represented by her Advocate Mr. A. Sreenivasa Iyengar for a sum of Rs. 7,500. For the third item also there-were only two bidders and that item was also purchased by Unnamalai Achi, represented by her Advocate for a sum of Rs. 750.

On 25th June, 1952, representation was made before the Judge by the decree holder that the sale was a nullity as it was being continued while the Subordinate Judge was on casual leave and under the direction of the Court the decree holder filed a memo of objections on 30th June, 1952. Though in the memo it was stated that actually no sale or bidding took place on any day prior to the 25th of June, the finding of the learned Judge now is that the sale was cried on the days on which it is said to have been continued according to the sale list and that it was only on 25th June, 1952, that the two bidders bid for the property which was finally knocked down for the highest bidder. The decree-holder stated before the learned Judge that he and his counsel were misled by representations made to the effect that because the Judge was on casual leave the sale would not take place and such being the case there was no one to bid on his behalf on those days. His further contention was that actually there was no sale and that the sale list submitted to the Court containing representations to the effect that on the previous days the sale was continued was a faked-up affair. But that need not be gone into now in view of the fact that no evidence has been let in to show that the contents of the bidders list are incorrect. We have therefore to proceed on the basis that the contents of the bidders list cannot be disputed. There is the further fact that the E.P. which had been adjourned to 23rd June, 1952, was further put off to 28th June, 1952, by the Chief Ministerial Officer as the Judge was on casual leave.

The learned Judge in the Court below was of opinion that when a sale is continued from day to day, no fresh proclamation is necessary as there is no question of adjournment of sale and since the selling officer cried the sale every day, the provisions of the Civil Procedure Code and the Civil Rules of Practice