Judgement 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. Appeal (No. 8 of 1942) from a judgment and decree of the High Court (January 23, 1940) reversing a judgment and decree of the court of the Subordinate Judge of Ellore (April 16, 1937). The following facts are taken from the judgment of the Judicial Committee. This appeal arose out of an application by the appellant, who was a judgment-debtor, to set aside a court sale of six items of property belonging to him which had been sold in execution of the decree in Original Suit No. 38 of 1919 in the Court of the Subordinate Judge of Ellore, obtained against him by the first respondent, the decree-holder. This appeal related only to three items of the properties, being items 4, 5 and 6, specified in the sale proclamation. At the sale the properties were purchased by the decree-holder himself. The application to set aside the sale was made under Or. 21, r.90, of the Code of Civil Procedure, which empowered the court to set aside a sale on the ground of a material irregularity or fraud in publishing or conducting it. That power of the court was subject to the proviso that no such sale be set aside on the ground of irregularity or fraud unless " upon the facts proved the court is satisfied that the applicant " has sustained substantial injury by reason of such irregularity " or fraud." The Subordinate Judge of Ellore, to whom the application had been made, set aside the sale on the grounds that the sale proclamation did not mention the revenue assessed on the properties as required by Or. 21, r. 66, sub-s. 2 (6), and that the sale proclamation was not published in the collectors office as required by Or. 21, r. 54, read with r. 67, of the Code of Civil Procedure, and that as a result of those irregularities the appellant had suffered substantial injury in that the sale prices were unreasonably low. 21, r. 66, sub-s. 2 (6), and that the sale proclamation was not published in the collectors office as required by Or. 21, r. 54, read with r. 67, of the Code of Civil Procedure, and that as a result of those irregularities the appellant had suffered substantial injury in that the sale prices were unreasonably low. The High Court of Madras (Wadsworth and Patanjali Sastri JJ.) reversed that decision by its order dated January 23, 1940, holding that in the circumstances of the case the omission to mention the Government revenue was not a material irregularity; and that the failure to affix the sale proclamation in the collectors office, though it was an irregularity, caused no substantial injury to the appellant. This appeal was brought against the above decision of the High Court. Besides the irregularities referred to, the appellant had also alleged fraud in his petition, but both the courts in India found that no fraud had been committed. The question for determination in this appeal was whether or not the appellant was entitled to set aside the court sale by reason of the above mentioned irregularities. 1945. June 7, 11. Khambatta for the appellant. Both the failure to state in the sale proclamation, as required by Or.21, r. 66, sub-r.2 (6), of the Code, the revenue assessed on the properties to be sold, and the failure to affix the sale proclamation in the collectors office, as required by Or.21, r. 54, read with r. 67, are material irregularities in the conduct of the sale by public auction. Both of those omissions have been held by the Board, even independently, to be serious defects, and the appellant is entitled to succeed on either of them. It is the duty of the court to see that the provisions of the Code regarding the sale proclamation are carried out Marudanayagam Pillai v. Manickavasakam Chettiar (( 1944) L. R. 72 I. A. 104.). The importance of having the proclamation affixed in the collectors office is that it would be only there that any intending purchaser would expect to find the revenue payable on the lands or their probable value. Tekait Krishna Prasad Singh v. Moti Chand (( 1913) L. R. 40 I.A. 140 ,144.) shows the importance which is attached to the requirement in the Code for the fixing of the proclamation. Tekait Krishna Prasad Singh v. Moti Chand (( 1913) L. R. 40 I.A. 140 ,144.) shows the importance which is attached to the requirement in the Code for the fixing of the proclamation. The present case is not as strong as Girdhari Singh v. Hurdeo Narain Singh (( 1876) L. R. 3 I. A. 230.) because here it is not the entire zemindari which was sold, but still, on the authority of Marudanayagam Pillais case (( 1944) L. R. 72 I. A. 104.) the court is not relieved from discharging its duty of giving, as far as possible, what is definitely known. In the present case it was a serious irregularity not to have put the proclamation in the collectors office; in r. 54 of Or. 21, the words are imperative—" shall be," not " may be Ganamma v. Ketireddi (( 1923) I. L. R. 46 M. 736.). The application to set aside the sale was made under r. 90 of Or. 21, 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. 130 and, assuming a material irregularity, the burden is on the appellant to satisfy the court of substantial injury. It was said in Olpherts v. Mahabir Pershad Singh (( 1882) L. R. 10 I. A. 25.) that the injury must be proved to have occurred in consequence of the irregularity, and cannot be assumed. There was no evidence in Olpherts case (( 1882) L. R. 10 I. A. 25.), but here, it is submitted, the evidence is sufficient to justify the inference by the court of first instance that the loss was due to the irregularities. It must always be a question of inference by the court from the evidence adduced. Olpherts case (( 1882) L. R. 10 I. A. 25.) was followed in T. R. Arunachellam Chetti v. V. R. R. M. A. R. Arunachellam Chetti (( 1888) L. R. 15 I. A. 171.) and Tassaduk Rasul Khan v. Ahmad Husain (( 1893) L. R. 20 I. A. 176.). Admittedly, it was said in the last cited case that " their Lordships cannot accept the judgment of " the Judicial Commissioner, that loss is to be inferred from " the mere fact that a sale was had without full compliance " with the provisions of s. 290. The section clearly contemplates direct evidence on the subject." (Ibid. Admittedly, it was said in the last cited case that " their Lordships cannot accept the judgment of " the Judicial Commissioner, that loss is to be inferred from " the mere fact that a sale was had without full compliance " with the provisions of s. 290. The section clearly contemplates direct evidence on the subject." (Ibid. 182.) It was held in Sivaskhandaraju v. Ramachandra Deo ( 1932) I. L. R. 56 M. 356.) that a reasonable inference could be drawn that the loss had been caused by the irregularity. Cases to the contrary—and saying that direct evidence is required—are Jagan Nath v. Makund Prasad (( 1895) I. L. R. 18 A. 37.) and Shirin Begam v. Agha Ali Khan (( 1895) I. L. R. 18 A. 141.), but those cases say no more than was said in Olpherts case (2), Arunachellam Chettis case (3) and Tassaduk Rasul Khans case (4). Nana Kumar Roy v. Golam Chunder Dey (( 1891) I. L. R. 18 C. 422.) does not carry the matter any further. In Mullas Code of Civil Procedure, 9th ed., p. 757; nth ed., p. 891, where there is a concise statement of the authorities, it is said that " he must also prove that the " inadequacy of the price has been caused by reason of the " material irregularity or fraud. Now there are two possible " modes in which this may be proved, namely —(a) by direct "evidence .... or (b) by circumstantial evidence, that is, " by evidence of circumstances which will warrant the necessary " or at least reason able inference that the inadequacy of price " was the result of the irregularity or fraud complained of." In Rang Lal Singh v. Ravaneshwar Pershad Singh (( 1911) L. R. 38 I. A. 200, 203.) it was the value of the property from which the inference could be drawn. Chhaterbijai Singh v. Damodar Das (( 1932) I. L. R. 12 Pat. 181.) goes further than is necessary for this appellant—it extends to setting aside the sale of ail the properties. Narasimhamurthy v. Official Receiver, West Godavari (2( 1935) I. L. R. 59 M. 438.) dissented from the last cited case, and does regard inadequacy of the sale price as evidence from which the court can draw an inference. 181.) goes further than is necessary for this appellant—it extends to setting aside the sale of ail the properties. Narasimhamurthy v. Official Receiver, West Godavari (2( 1935) I. L. R. 59 M. 438.) dissented from the last cited case, and does regard inadequacy of the sale price as evidence from which the court can draw an inference. Again, in Ramasesha Iyer v. C. V. Ramanujachariar (( 1935) A. I. R. (Mad.) 459, 463) the only evidence on which the inference was drawn was that the properties did in fact fetch a very low price. [Reference was also made to Muhammad Zaman v. Sher Muhammad (( 1933) A. I. R. (Pesh.) 41, 43) and Nakul Chandra Das v. Rajendra Chandra (( 1927) A. I. R. (Cal.) 873.).] The nature of the irregularities in the present case is sufficiently strong, when taken with the finding, which is based on ample evidence, that the price was totally inadequate, to warrant the inference which was drawn by the Subordinate Judge. Rewcastle K.C. and Subba Row for the first respondent. The primary answer to the appellants objections is, in the words used in T. R. Arunachellam Chetti v. V, R. R. M. A. R. Arunachellam Chetti (( 1888) L. R. 15 I. A. 171, 174.), that "the judgment-debtors knowing, u as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the " sale is completed, and then ask to have it set aside on account " of this, as they say, misdescription....If it was really a ground for complaint ....they ought to have come and " complained.” With regard to the particular objections here, however, this was not a case which required the revenue to be given. The High Court were right in their view that " it seems to us very doubtful whether this provision [Or. 21, 66, sub-r.2 (b)] has any application to a case in which the property sold is a portion of an estate upon which no separate revenue has been fixed. The High Court were right in their view that " it seems to us very doubtful whether this provision [Or. 21, 66, sub-r.2 (b)] has any application to a case in which the property sold is a portion of an estate upon which no separate revenue has been fixed. So far as we can ascertain in all " these sales wherein the proclamations do not specify the " revenue payable, the property to be sold consists of either " a village or a part of a village with reference to which no " one can say with any certainty what would have been the " proportionate peshkash payable if and when the procedure " laid down for the separate 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. 131 registry of those portions is carried out. It cannot be the intention of the rule to prescribe that which is impossible." There was no separate assessment on the lands that were to be sold; they were assessed together with other lands. Section 1 of the Madras Land Revenue Assessment Act, Mad. Act I. of 1876, provides for the assessment of revenue on divided lands, and until that is done nobody can say what the proportionate revenue on the land sold is. Rule 66, sub-r.2 (b), of Or. 21 has no application to this case; that which it is not possible to specify at all cannot be specified " as fairly and accurately as possible.” Further, a.- apportionment of the revenue would be influenced by the price at the sale, so that it would be impossible to say in advance what the apportionment was going to be. If r. 66, sub-r. 2 (6), was applicable, then all that the respondent could give was the revenue of the whole estate, and that would not only not help, but might indeed be misleading. It was therefore not possible for him to state the revenue of the property to be sold. There is not a trace of evidence that the non-statement of the revenue had any effect on the price. Indeed, it could not have; everybody must have known that there was some revenue assessed on the land, and their guess was as good as anothers. There is not a trace of evidence that the non-statement of the revenue had any effect on the price. Indeed, it could not have; everybody must have known that there was some revenue assessed on the land, and their guess was as good as anothers. The next point—the non-affixing of the proclamation in the collectors office—is an irregularity, a slight one, it is contended, but it is not a material irregularity, and it has not been shown that it led to the diminution in price. There was nothing to link the low price with that irregularity, and it cannot be assumed that it was caused by it. There was no connecting link between the smallness of the price and the alleged irregularities; there is no evidence to that effect, whether direct or circumstantial. Khambatta replied. The question in T. R. Arunachellam Chettis case (L. R.15 I. A. 171.) was entirely different from that here. July 30. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR. who stated the facts set out above and continued In order to set aside a sale under Or. 21, r. 90, it should be proved (1.) that there was material irregularity or fraud in publishing or conducting the sale, and (2.) that the applicant had sustained substantial injury by reason of such irregularity or fraud. Mere irregularity or fraud in publishing or conducting the sale will not entitle the court to set it aside unless on the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The words in the proviso " unless upon " the facts proved the court is satisfied have been substituted in the present Code for the words unless the applicant proves to the satisfaction of the court in the proviso to s. 311 of the Code of 1882. The words in the proviso " unless upon " the facts proved the court is satisfied have been substituted in the present Code for the words unless the applicant proves to the satisfaction of the court in the proviso to s. 311 of the Code of 1882. In the course of the arguments the question was raised, in connexion with the High Courts observation, " Nor is there any evidence to connect this irregularity [failure " to affix the notice in the collectors office] with any defect " in price," whether the substantial injury sustained by the applicant by reason of the material irregularity or fraud complained of could be proved only by " direct evidence," as stated in the judgment of the Board in Tassaduk Pasul Khan v. Ahmad Husain (( 1893) L. R. 20 I. A. 176.), or if it could be proved also by evidence from which it might be reasonably inferred that the substantial injury was the result of the material irregularity or fraud. It appears to their Lordships that on the language of the proviso as it now stands, what is required is that the court should be satisfied that the applicant has suffered substantial injury by reason of material irregularity or fraud, and if the court is so satisfied from the facts proved then the applicant may be said to have discharged his burden. Their Lordships think that this burden may be discharged not only by direct evidence connecting the material irregularity or fraud with the substantial injury, but also by circumstantial evidence, that is, evidence from which a reasonable inference may be drawn that the substantial injury was the result of the material irregularity or fraud, as pointed out in Ramasesha Iyer v. Ramanujachariar (( 1935) A. I. R. (Mad.) 459.), where all the relevant decisions have been considered. The Madras and Calcutta High Courts have always been of this opinion. Sir Dinsha Mulla says in his commentary on the rule that the amendment of the language of the proviso was made to give effect to the Madras and Calcutta decisions. The High Court of Allahabad, which followed the rigid construction, has now adopted the 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. 132 new rule (see Rajendra Behari Lal v. Gulzari Lal (( 1933) I. L. R. 55 A. 182.)). The High Court of Allahabad, which followed the rigid construction, has now adopted the 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. 132 new rule (see Rajendra Behari Lal v. Gulzari Lal (( 1933) I. L. R. 55 A. 182.)). Turning now to the essential facts of the case, the appellant is the proprietor of the North West Vallur estate, consisting of about thirty-four villages in Kistna and West Godavari districts paying an annual peshkash (revenue) of Rs.42,000. The first respondent is his brother. In the partition of the main estate between himself and his brother the appellant got twenty villages as his share, and he has since purchased fourteen villages in the two districts, for which he had borrowed considerable sums of money. As he had failed to discharge those debts his creditors brought suits against him and obtained decrees. In enforcement of the decree obtained by the first respondent in the partition suit (Original Suit No. 38 of 1919) for about Rs.46,000 he brought the properties in dispute for sale and, as mentioned before, purchased them himself. The first irregularity alleged is the failure to mention in the sale proclamation the revenue assessed on the properties as required by Or.21, r. 66, sub-r.2 (b). This rule lays down that the proclamation for sale shall specify as fairly and accurately as possible the revenue assessed upon the estate or part " of the estate where the property to be sold is an interest in " an estate or part of an estate paying revenue to the Government." The allegation that the revenue due on each of the properties has not been specified is not denied by the first respondent, his case being that in those cases where the proclamations do not specify the revenue payable it was impossible in the circumstances of the case to specify the revenue as the revenue due on the properties had not been separately fixed. The learned judges of the High Court state in their judgment " So far as we can ascertain in all these " sales wherein the proclamations do not specify the revenue " payable, the property to be sold consists of either a village "or a part of a village with reference to which no one can say " with any certainty what would have been the proportionate " peshkash payable if and when the procedure laid down for " the separate registry of those portions is carried out.11 It is not disputed that no steps had been taken to effect separate registration of the properties and their separate assessment by resorting to the procedure prescribed by law. The learned judges point out that even in the case of whole villages put up for sale (as in the connected C.M.A. 378 before them), where a rough approximation of the revenue might possibly have been made, they found three different estimates of the proportionate peshkash in the evidence varying to a very considerable extent. It would seem that the appellant himself, who stated that the peshkash for a group of villages in another connected C.M.A. was a certain amount, was unable to say how much was due on each village. Their Lordships have no doubt that omission to state the revenue on an estate or part of an estate paying revenue to the government, where it is possible to state the amount accurately or even approximately, is a material irregularity within the meaning of the rule, but in their view the rule can have no application to a case like the present in which the property sold is a portion of an estate upon which no separate revenue has been fixed. They agree with the High Court in holding that in the circumstances of the present case the failure of the decree-holder to state the revenue payable on the lands cannot be treated as a material irregularity. The question whether it has been proved that the appellant has sustained any substantial injury by reason of the irregularity does not therefore arise for consideration. The next irregularity alleged is the omission to affix the sale proclamation in the collectors office as prescribed in Or. 21, r. 54, read with r. 67 of the Code of Civil Procedure. The question whether it has been proved that the appellant has sustained any substantial injury by reason of the irregularity does not therefore arise for consideration. The next irregularity alleged is the omission to affix the sale proclamation in the collectors office as prescribed in Or. 21, r. 54, read with r. 67 of the Code of Civil Procedure. Ordinarily, the omission to affix the proclamation in the collectors office would indeed be a material irregularity, as it is a non-compliance with the procedure prescribed by law, but in the circumstances of the present case the breach of the rule can hardly be called a material irregularity. It is stated in the judgment of the High Court that the collectors office and the district judges court are situated in the same compound, and it is not denied that a copy of the proclamation was duly affixed in the district judges court. Further, evidence shows that the sale was widely advertised in various daily papers. The object of the rule requiring affixture of the sale proclamation in the collectors office is to give sufficient publicity to the sale; where such publicity has been given to the sale, as in the present case, the irregularity 28 Law. Rep. 72 Ind. App. 287 ( 1944- 1945) Raja Bommadevara Naganna Naidu B.Z. Garu V. In Re. 133 complained of can hardly amount to a material irregularity. Assuming, however, that the omission amounts to a material irregularity, it has not been proved by evidence, direct or circumstantial, that the inadequate price which the properties fetched at the sale, as found by the subordinate judge, was by reason of this irregularity. Their Lordships have been taken through the material portions of the evidence bearing on the point but are not satisfied that the defect in price could be attributed to this irregularity. For the above reasons their Lordships would humbly advise His Majesty that the appeal fails, and should be dismissed with the costs of the first respondent.