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KERALA HIGH COURT
S.S. Satheesachandran, J.
Y. Subrahmanya Bhat —Appellant
versus
P. Santhosh Kumar & Another —Respondents
W.P.(C).No.18337 of 2008 (G)
Decided on 3.03.10
IMPORTANT POINT
An omission to issue a fresh proclamation at the most is only a material irregularity in the conducting of the sale. It does not vitiate the sale conducted as void.
Headnote:Civil Procedure Code, 1908—Section 47 —Petitioner auction purchaser, purchased 1/5th right held by the 1st respondent judgment debtor in a suit property, which was brought to sale by the decree holder, 2nd respondent bank-Application filed by 1st respondent/judgment debtor before the execution court to set aside the sale on the ground that there was no fresh proclamation after adjournment of the sale fixed beyond a period of 30 days from the date of proclamation, and it violated the mandatory provision under sub rule (2) of Rule 69 of Order XXI of the Code- Munsiff, after hearing both sides, found merit in the challenge raised by the 1st respondent/judgment debtor and set aside the sale –Writ Petition thereagainst-Held Before conducting the present sale, court had proclaimed the sale not once but twice- Even on the second occasion, the sale was adjourned on part payment of the decree debt made by the judgment debtor- There were two adjournments, each of them for a period less than 30 days before the sale was finally conducted on 1.3.2007- If at all there was any material irregularity in conducting of such sale in flouting sub rule (2) of Rule 69 of Order XXI, the judgment debtor was bound to impeach such sale moving an application within the time provided under Order XXI Rule 90 of the Code establishing the substantial injury enabling him to set aside the sale under that Rule- An application, at his instance, to impeach the sale under Section 47 of the Code on the ground of omission to draw up a fresh proclamation in conducting the sale beyond the period of 30 days from the previous date fixed for sale is not entertainable as that omission is only a material irregularity which does not render the sale void, but only make it voidable- That omission falls within ‘material’ irregularity’ covered by Order XXI Rule 90 of the Code and the sale vitiated by such a flaw can be set aside only where it is shown that the judgment debtor suffered substantial injury on account of such irregularity in the conducting of the sale- Order passed by Munsiff entertaining the application moved by the judgment debtor under Section 47 of the Code and setting aside the sale held liable to be set aside-Writ petition allowed. (Paras 12 to14)
Facts of the Case- Petitioner auction purchaser herein in the instant case purchased 1/5th right held by the 1st respondent judgment debtor in a suit property, which was brought to sale by the decree holder, 2nd respondent bank. An Application was filed by 1st respondent/judgment debtor before the execution court to set aside the sale on the ground that there was no fresh proclamation after adjournment of the sale fixed beyond a period of 30 days from the date of proclamation, and it violated the mandatory provision under sub rule (2) of Rule 69 of Order XXI of the Code. Munsiff, after hearing both sides, found merit in the challenge raised by the 1st respondent/judgment debtor and set aside the sale.
2.Present writ petition has been filed against said order of Munsiff.
Findings of the Court: Held Before conducting the present sale, court had proclaimed the sale not once but twice. Even on the second occasion, the sale was adjourned on part payment of the decree debt made by the judgment debtor. There were two adjournments, each of them for a period less than 30 days before the sale was finally conducted on 1.3.2007.If at all there was any material irregularity in conducting of such sale in flouting sub rule (2) of Rule 69 of Order XXI, the judgment debtor was bound to impeach such sale moving an application within the time provided under Order XXI Rule 90 of the Code establishing the substantial injury enabling him to set aside the sale under that Rule.An application, at his instance, to impeach the sale under Section 47 of the Code on the ground of omission to draw up a fresh proclamation in conducting the sale beyond the period of 30 days from the previous date fixed for sale is not entertainable as that omission is only a material irregularity which does not render the sale void, but only make it voidable. That omission falls within ‘material’ irregularity’ covered by Order XXI Rule 90 of the Code and the sale vitiated by such a flaw can be set aside only where it is shown that the judgment debtor suffered substantial injury on account of such irregularity in the conducting of the sale.Order passed by Munsiff entertaining the application moved by the judgment debtor under Section 47 of the Code and setting aside the sale was held liable to be set aside.Writ petition was allowed.
Result- Writ petition allowed.
S.S. Satheesachandran, J.—The writ petition is filed seeking the following reliefs:
a) call for the records of the case leading to Ext.P9 order and set aside the same by means of an appropriate writ or order.
b) pass an order directing the Munsif Court, Kasargode to keep in abeyance all further proceedings in O.S.No.344 of 2007 until a final decision is taken by this Hon’ble Court in this matter.
c) Grant such other orders or reliefs that this Hon’ble Court may deem fit to grant under the facts and circumstances of this case.
2. Petitioner is the auction purchaser, who purchased 1/5th right held by the 1st respondent judgment debtor in a property having an extent of 26 cents in Re-survey No.5/3B and 52 cents comprised in Re-survey No.7/3 if Kumgbadje Village, which was brought to sale in E.P.No.137/06 in O.S.No.284/05 by the decree holder, the 2nd respondent bank. After depositing the sale price, sale over the property was confirmed and later a sale certificate was issued in favour of the petitioner. To get separate possession of the property petitioner instituted a suit for partition O.S.No.344/07 before the Munsiff’s Court, Kasargode seeking division of the 1/5th share which belonged to the 1st respondent, obtained by him under the sale certificate. That suit is still pending adjudication. Meanwhile, the 1st respondent/judgment debtor moved an application, E.A.No.404/07, before the execution court under Section 47 of the Code of Civil Procedure (for short “the Code”) to set aside the sale. Sale was impeached on the ground that there was no fresh proclamation after adjournment of the sale fixed beyond a period of 30 days from the date of proclamation, and it violated the mandatory provision under sub rule (2) of Rule 69 of Order XXI of the Code. Petitioner/auction purchaser resisted that application filing objections. The learned Munsiff, after hearing both sides, found merit in the challenge raised by the 1st respondent/judgment debtor and set aside the sale vide Ext.P9 order. Propriety and correctness of Ext.P9 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides. The parties are hereinafter referred to as the auction purchaser and the judgment debtor.
4. The learned counsel appearing for the auction purchaser contended that the application filed under Section 47 of the Code by the judgment debtor was barred by limitation. At no point of time the sale was adjourned for a period exceeding 30 days from the date of publication of the proclamation, though there were one or two adjournments from the date fixed for conducting of the sale submits the counsel. Sale was confirmed after the period prescribed for setting aside the sale under Rules 89 and 90 of Order XXI of the Code, and without any objection from the judgment debtor, is the further submission of the learned counsel. If at all there was any irregularity in the conducting of the sale the remedy of the judgment debtor was to move an application under Order XXI Rule 92 of the Code and having not taken recourse to that remedy, the application moved under Section 47 of the Code, five months after the confirmation of the sale, according to the counsel, is not at all maintainable. Relying on Pathummal Kunju v. Aiyappan Sanku Panicker, (1956 KLT 954) learned counsel contended that the omission to issue a fresh proclamation as required by Rule 69(2) of Order XXI of the Code amounts to a mere irregularity, and sale conducted cannot be set aside on the basis of such irregularity in the absence of proof of substantial injury sustained by the judgment debtor. If there was any breach of any provision relating to the publication or the conduct of the sale unless it is shown that there is illegality as to the flouting of the mandatory provisions in conducting of the sale such sale can be considered only as vitiated by material irregularity, and
