Court sales affected by irregularities in publication do not invalidate the sale but render it voidable, allowing for remedies under Rule 90 of the CPC.

1The decree holder auction purchaser is the revision petitioner. In execution of the decree the decree schedule properties were sold in court auction on 6-2-1961 and purchased by the decree holder for Rs. 154.37 in satisfaction of the decree. The court auction was confirmed on 10-3-1961. The respondents who are the judgment debtors filed an application on 20-3-1961 under S.47 and 151 and O.21 R.90, C.P.C. to set aside the court sale. The execution court held that in view of the omission to affix the proclamation of sale in the property sold and the omission to publish the same by beat of drum there was material irregularity and fraud in publishing and conducting the sale as a result of which the respondents sustained substantial injury. The learned Munsiff also took the view that the application to set aside the sale filed on 20-3-1961 was not barred by limitation as the respondents were entitled to the benefit of S.18 of the Limitation Act. The learned District Judge though concurred with the learned Munsiff in setting aside the sale took the view that the omission to affix the proclamation of sale on the property sold and the omission to publish the same by beat of drum is not a mere irregularity in the publication or conduct of the sale but would render the sale illegal or void and it is open to the judgment debtor to have the court sale declared illegal or void by an application filed under S.47, C.P.C. which will be governed by Art.181 of the Indian Limitation Act.

2 Both the lower courts have found that a copy of the proclamation was not affixed to a conspicuous part of the property and there was no publishing of the proclamation by beat of drum. O.21 R.67 of the Civil Procedure Code reads thus:
" (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by R.54, sub-r.(2).
(2) Where the court so directs, such proclamation shall also be published in the official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given."
O.21 R.54, clause (2) reads thus:
"The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court house and also in the Village Office or in case there is no such office in the Taluk Office of the place in which the land is situate and where the property is situated within the limits of a Municipality or Panchayat in the office of the Municipality or Panchayat within the limits of which the property is situate."
O.21 R.67, C.P.C. prescribes only the manner in which the sale should be proclaimed. On a careful consideration of the above provisions it will be seen that the affixing of a copy of the proclamation on the property to be sold should be done at the time the sale is proclaimed by beat of drum and the affixing of the copies of the proclamation of sale in the court house, Village Office etc. has to be after the publication on the property. This is clear from the use of the word 'then' in O.21 R.54, sub clause (2) C.P.C. The question raised in the appeal before us is what is the legal effect of an omission to publish a proclamation of sale by affixing the same on a conspicuous part of the property and the failure to proclaim the same at some place on the property or adjacent to the property. The learned advocate for the revision petitioner contended that such omission will be only irregularities
in publishing and conducting the sale and the appropriate remedy of the judgment debtor is to have the court sale set aside by an application under O.21 R.90, C. P. C. by proving that he has sustaine