Sale to be set aside due to non-proclamation.

This is an appeal against the order of the Subordinate Judge of Tuticorin in C.M.A. No. 8 of 1945 allowing the appeal against the order of the District Munsiff of Koilpatti in E.A. No. 233 of 1944 in O.S. No. 186 of 1939. The appellant is the second defendant, first defendant being the father. In execution of a mortgage decree in O.S. No. 186 of 1939 the properties of defendants 1 and 2 were brought for sale. Sale was held on the 15th September, 1943, the first respondent here being the auction purchaser. The sale was confirmed on the 18th October, 1943. On the 24th February, 1944, the appellant filed an application under section 47 and Order 21, rule 90 of the Civil Procedure Code for setting aside the sale held on the 15th September, 1943. The grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2) that there was no publication of the sale proclamation in the village as required by Order 21, rule 67 of the Code of Civil Procedure, and (3) that the properties were grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low upset price fixed for the properties and that as a result of the under-valuation and fraud the petitioner has sustained substantial injury, in that the properties worth several thousands have been sold for an inadequate and low price of Rs. 269. The learned District Munsiff who heard the application held that the sale was vitiated by fraud and irregularity, that there was no proclamation of the sale in the village and that the properties were grossly under-valued and therefore allowed the application and set aside the sale. On appeal the learned Subordinate Judge remanded the application for finding on certain matters. That order of remand was taken up in appeal to this Court in C.M.A. No. 694 of 1945 and Chandrasekhara Aiyar, J., directed a further remand to the Subordinate Judge for a finding as to whether there was a proper proclamation or not and on the question of absence of notice and under-valuation. The learned Subordinate Judge did not take any further evidence but on the material on record proceeded to record findings on the three points referred to him. The learned Subordinate Judge found that even though notice was not personally served upon the appellant, he must have been kept informed of the proceedings by his father who is the first defendant in the case. As regards proclamation he held that there was no due proclamation. Regarding under-valuation he was of opinion that the valuation fixed by the Court was not grossly inadequate and observed that it followed from the findings that the appellant has not suffered substantial injury oh account of the irregularity in the matter of publication. He also held that the petition was barred by limitation. The appeal against the order setting aside the sale was allowed. This C.M.S.A. is against the said order.

Mr. Ramaswami Iyer, counsel for the appellant, mainly contended that in view of the findings of both the Courts that there was no proclamation, the sale held in such circumstances is void and is illegal and this is not a case where in the publication and conduct of the sale there were material irregularities on which an application under Order 21, rule 90 could be made. He argued that the application was nnder section 47, and the making of the proclamation being prior to the sale, the application must be deemed to be one under section 47 and not under Order 21, rule 90 of the Civil Procedure Code. There are concurrent findings of fact of both the learned District Munsiff and the Subordinate Judge that there was no proclamation of sale. The learned District Munsif finds that there has been no publication of sale proclamation as required by Order 21, rule 67 read with rule 54(2), while the Subordinate Judge holds that after examining the evidence that there has been no due procl