Irregularities in an auction sale, such as improper service or suppression of the sale proclamation, do not render the sale null and void but only voidable and can be challenged through a petition under Order 21, Rule 90, Civil Procedure Code.

S. ACHARYA, J.

( 1 ) THE unsuccessful objectors under Section 47, Civil Procedure Code in execution Case No. 131/69 against the auction sale of certain properties are the appellants in these appeals. All the three appeals arise out of the common judgment passed on three petitions under Section 47, Civil Procedure Code filed by the appellants in the court below; all the three appeals were heard analogously, one set of argument was advanced by counsel appearing for both the parties; and so all the three appeals are hereby being disposed of by this one judgment.

( 2 ) AUCTION sale in respect of certain properties' was held in the said execution proceeding on 27-6-1974. The appellants claim to be pendente lite purchasers of some of those properties. They did not prefer any petition under Order 21, rule 90, Civil Procedure Code but filed petitions under Section 47, Civil procedure Code challenging the validity of the auction sale mostly on the ground that the sale proclamation had not been made, and if made it was not in accordance with the procedure laid down for that purpose under the Civil procedure Code, and that the said sale was not held on the date when and by the court where it was to be held as allegedly notified earlier.

( 3 ) BOTH the courts have found that the petitioners have not been able to establish that they have sustained substantial injury by reason of the alleged irregularities. Both the courts have also found that proclamation for sale of those properties had been duly made and no material irregularities were committed in holding the auction sale of the properties in question.

( 4 ) IT is submitted by Mr. Bhuyan, the learned counsel for the appellants in all the three appeals, that there was no sale proclamation for holding the auction sale of the properties in question, and the auction sale was not held on the date on which and by the court in which it was to be held, and so the said sale is absolutely null and void and is liable to be set aside. Mr. Pal, the learned counsel for the respondent, submits that the factual aspects on which the above contention is based are incorrect, and that the appellants are not entitled to any relief in this matter on their petitions under Section 47 C. P. C. especially because they have not filed any petition under Order 21, Rule 90 C. P. C. assailing the said sale. According to Mr. Pal the grounds and allegations on which the auction sale is assailed, even if considered as correct for the sake of argument, would not render the said sale null and void and so the same cannot be questioned by a petition under Section 47, Civil Procedure Code without filing a regular petition under Order 21, Rule 90, Civil procedure Code.

( 5 ) THE view that a sale is not a nullity even where there is no service of sale proclamation has been held by this Court in the case reported in (1969) 35 Cut lt 757 (Krishna Chandra v. Upendra Jena ). In Dhirendra Nath Gorai's case (AIR 1964 SC 1300) their Lordships have laid down a workable test regarding the distinction between an illegality and an irregularity. Their Lordships in that connection have, with approval, referred to the observation in Holmes v. Russell, (1841) 9 Dowl 437, which is as follows:--". . . . . ,. . . . . . the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it. It amounts to any irregularity; if he cannot, it is a nullity. " another test, accepted by their Lordships, is the following as stated in "craies on Statute Law", 6th Edn. . page 269. " (But) if it appears that the statutory conditions were inserted by (he legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. " in the decision reported in AIR 1967 Ker 163 (Narayanan Na