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SUPREME COURT OF INDIA

Page 1 of 4

PETITIONER:

S. A. SUNDARARAJAN

Vs.

RESPONDENT:

A. P. V. RAJENDRAN

DATE OF JUDGMENT13/01/1981

BENCH:

PATHAK, R.S.

BENCH:

PATHAK, R.S.

SARKARIA, RANJIT SINGH

CITATION:

1981 AIR 693 1981 SCR (2) 600

1981 SCC (1) 719 1981 SCALE (1)261

ACT:

Code of Civil Procedure-Order XXI, rule 90-And section

47-Irregularities in settling sale proclamation-Section 47,

if attracted.

HEADNOTE:

In his petition under section 47 of the Code of Civil

Procedure the appellant alleged that the sale of one of the

lots of his property which was attached pursuant to a decree

of a court was vitiated in that there were several

irregularities and omissions in the proclamation of sale and

the conduct of the sale. Accepting his contention that the

material irregularities in the sale proclamation vitiated

the sale, the executing court set aside the sale.

Allowing the respondent’s appeal, the High Court held

that the application for setting aside the sale lay under

rule 90 of Order XXI and not under section 47 of the Code.

Dismissing the appeal

^

HELD : The application for setting aside the sale on

the grounds taken by the appellant is referable to rule 90

of Order XXI and, therefore, not to section 47. [603F]

The settling of the sale proclamation is part of the

integral process of publishing the sale and irregularities

committed in the process of settling the sale proclamation

are irregularities which fall within the amplitude of rule

90 of Order XXI. [603B]

The errors complained of by the appellant amounted to

mere irregularities committed in settling the sale

proclamation and could not be described as errors which

render the sale void. [602D]

The requirements which were not complied with when

settling the sale proclamation were intended for the benefit

of the appellant who could waive them. They were not matters

which went to the root of the court’s jurisdiction and

constituted the foundation or authority for the proceeding

or where public interest was involved. They were mere

irregularities which fell within the scope of rule 90 of

Order XXI C.P.C. [602E-F]

Dhirendra Nath Gorai and Subal Chandra Shaw and Others

v. Sudhir Chandra Ghosh and Others [1964] 6 S.C.R. 1001

applied.

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Page 2 of 4

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 124 of

1981.

Appeal by Special Leave from the Judgment and Order

dated 14-6-1979 of the Madras High Court in AAO No. 386/75.

601

M. Natesan, K. Ramkumar and Mrs. J. Ramachandran for

the Appellant.

T. S. Krishnamoorthy and K. R. Choudhary for the

Respondent.

The Judgment of the Court was delivered by

PATHAK, J.-This appeal by special leave is directed

against the judgment of the Madras High Court maintaining

that objections in regard to a sale proclamation in

proceedings for execution of a civil decree can be raised

under rule 90 of Order XXI, Code of Civil Procedure.

A civil suit by the respondent against the appellant

was decreed in 1971. The attachment of the appellant’s

property before judgment was made absolute on the date of

the decree. To execute the decree the respondent filed

execution Petition No. 222 of 1972 and prayed for sale of

the attached property. It was decided to put up the attached

property in two lots for sale. Lot No. 1 was sold on 28th

January, 1974 for Rs. 40,000/- to the respondent. Lot No. 2

was not sold for want of bidders. The sale of Lot No. 1 was

confirmed by the court on 2nd March, 1974 and full

satisfaction of the decree was recorded. Subsequently, the

appellant filed Execution Application No. 600 of 1974,

purporting to be under s. 47 of the Code, for setting aside

the sale of Lot No. 1. He claimed that the proclam