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Allahabad High Court · body

1967 DIGILAW 291 (ALL)

Fazal Haque v. Shrimati Kulsumun Nissan

1967-08-17

D.S.MATHUR

body1967
JUDGMENT D.S. Mathur, J. - This is an Execution First Appeal by Fazal Hague and another, decree-holders, against the order dated 16-11965 of the Civil Judge of Agra, allowing the objection under Section 47, C. P. C. of Smt. Mulsumunnissa judgment-debtor, and thereby setting aside the sale on the ground that. no fresh notice under Order 21, rule 66(2), C. P. C. was served upon her before the issue of a fresh sale proclamation. 2. The material facts of the case are that the decree-holders-appellants masted the present execution application sometimes in July, 1961 and the request made therein was for the attachment and sale of the properties of the judgment-debtor. After the attachment of the property a notice under Order 21, rule 66(2), C.P.C. was ordered to be issued. In spite of the service which was regarded to be sufficient, the judgment-debtor made no objection to the terms and conditions to be incorporated in the sate proclamation. However, an objection under Section 47, C. P. C. was made to challenge the mode of attachment of the property. This objection was allowed, for the reason that there was nothing on the record to show that the notice of attachment had been posted outside the court-room. The decree-holders thereupon took fresh steps for attachment and sale. At this occasion also the judgment-debtor did not file any objection in spite of the service of the notice under Order 21, rule 66 (2) , C. P. C. The terms and conditions of the sale were the settled and sale proclamation drawn up under order dated 6-12-1962 and 26-1-1963 was fixed for sale. It was on 3.1-1963 after the judgment-debtor moved an application for stay of sale. The application was under order 41 rule 6 (2), C. P. C. The sale of the property was stayed on the judgment-debtor giving sufficient security. Later on, the surety withdrew and the Court ordered the execution to proceed. Under Order dated 22-8-1964, the decree-holders were directed to take steps for sale by 29-8-1961. The decree-holders took steps and thereupon 30-10-1964 was fixed for sale. Apparently, the steps taken for the sale were regarded to be sufficient. 3. It 'was on 28-10-1964 that the judgment-debtor made an application for stay of the sale. One of the grounds raised was that no fresh notice under Order 21, rule 66 (2) . The decree-holders took steps and thereupon 30-10-1964 was fixed for sale. Apparently, the steps taken for the sale were regarded to be sufficient. 3. It 'was on 28-10-1964 that the judgment-debtor made an application for stay of the sale. One of the grounds raised was that no fresh notice under Order 21, rule 66 (2) . C. P. C. had been served upon her, and consequently the sale proceedings already taken were a nullity. The executing court did not stay the sale. The sale was con' ducted on 30-10-1964 and when no objection under Order 21, rule 90, C. P. C. was made within the prescribed period, the sale was confirmed. The objection made on 28-10-1964 came up for final hearing after the confirmation of the sale. Under order dated 16-1-1965 under appeal, the learned Civil Judge allowed the objection on the ground that non-service of a fresh notice under Order 21, rule 66(2), C.P.C. amounted to an illegality and the sale was vitiated. The proceeding already taken was thus regarded to be invalid and in spite of the confirmation of the sale it was set aside. 4. Two points that arise for consideration are: one whether in case of a fresh sale, it is necessary to serve a fresh notice under Order 21, rule 66(2), C.P.C. The second point is whether, in the circumstances of the present case, the service of such a notice was or was not necessary. 5. Rules 66(2), 67 and 69 of Order 21, C.P.C. are material in laying down the answer to the above two questions. It shall be found that rule 66 (2) speaks of the "drawing up" of a proclamation of sale after notice to the decree-holder and the judgment-debtor. The contents of the proclamation of sale are detailed in the latter part of this sub-rule. Rule 67(1) lays down the mode of publication, in the words of the marginal note "Mode of making proclamation." The sub-rule provides that every proclamation shall be made and published, as nearly as . way be, in the manner prescribed by rule 54, sub-rule (2) . Rule 54 (2) lays down the mode of publication. The, making of a proclamation is, in one way, not materially different from the publication of the proclamation. A proclamation duly ,published is often said to have been made. way be, in the manner prescribed by rule 54, sub-rule (2) . Rule 54 (2) lays down the mode of publication. The, making of a proclamation is, in one way, not materially different from the publication of the proclamation. A proclamation duly ,published is often said to have been made. The maximum what can be said is that the making of the proclamation is the clerical part of the publication, while the publication (IT the proclamation is what is clone to give publicity to the sale to be conducted under orders of the Court. When the legislature used different words in the two rules, "drawn -up" in rule 66.(2) and did not use these words in rule 67 (I) , but used the word -"made" instead, it must be held that the word "made" was used to signify a proceeding other than the proceeding of the "drawing up" of the sale proclamation. 6. After adjournment of the sale under rule 69 (I) it is necessary to make a fresh proclamation under rule 67 unless the adjournment is for a period not exceeding 30 days or the judgment-debtor consents to waive it. As provided in the second proviso to rule 69 (2) of Order 21, C.P.C., as amended by the Allahabad High Court, the Court can dispense with the consent of any judgment-debtor who had failed to attend in answer to a notice issued under rule 66. 7. Reference to rule 67 only in rule 69 (2) makes it clear that it is not necessary for the Court to draw up the sale proclamation all over again. What is necessary is that a fresh proclamation shall be made. Even though the words "made" and "published" were used in rule 67 (1) , the Allahabad High Court while amending rule 69 (2) merely used the word "made". This shall also make it clear that the "making" and "Publication" of the proclamation are one and the same thing. It shall include the preparation of a sale proclamation in accordance with the order of the Court passed under Order 21, rule 66 (2) , C. P. C. and thereafter publication of the sale proclamation. 8. This shall also make it clear that the "making" and "Publication" of the proclamation are one and the same thing. It shall include the preparation of a sale proclamation in accordance with the order of the Court passed under Order 21, rule 66 (2) , C. P. C. and thereafter publication of the sale proclamation. 8. On a consideration of rules 66, 67 and 69 of Order 21, C. P. C. it must be held , that while conducting a tale after the adjournment or stay of sale it is not necessary to draw up the "sale proclamation afresh. What is necessary is that a fresh proclamation shall be made, i.e., the date and time of sale should be given due publicity in accordance with the rules. A similar view was expressed in Ahmad Hasan v. Kodi Lal, A.I.R. 1926 Oudh 76 and Radhabai Ghubbaji v. Kondhq Shioram, I.L.R. 1961 Bombay 588. 9. The learned Advocate for the respondent (judgment-debtor) invited my attention to rule Ill of Order 21, C. P. C. added by the Allahabad High Court, in support of his contention that where the sale was being conducted after a few years, a fresh proclamation must be drawn up. This rule does not lay down such a procedure: it merely provides that if after proclamation of the intended sale has been made any matter is brought to the notice of the Court which it considers material for purchasers to know, the Court shall cause the same to be notified to intending purchasers when the property is put up for sale. "Action under this rule can be taken suo moto of on the application of a party to the proceeding. In the instant case, the judgment-debtor merely raised an objection and did not bring any matter to the notice of the Court which in her opinion, should be duly notified at the time of the sale. It may be that the value of the property, as notified in the sale proclamation, is low, but the responsibility for correct valuation not being entered therein shall rest upon the judgment-debtor herself. She should have put in appearance when the notice under Order 21, rule 66(2), C.P.C. was served upon her. It may be that the value of the property, as notified in the sale proclamation, is low, but the responsibility for correct valuation not being entered therein shall rest upon the judgment-debtor herself. She should have put in appearance when the notice under Order 21, rule 66(2), C.P.C. was served upon her. In the alternative, instead of raising an unnecessary objection, she should have moved the Court to notify at the time of the sale that the present value of the property was much more. 10. Order 21, rule 69, C.P.C. is not directly applicable to the present sale, though a sale stayed under orders of the Court is a sale adjourned to an unspecified date and time. Considered in this light the present sale shall be governed by Order 21, rule 69, C.P.C. Even if this rule is not applicable, the principle, laid down therein can be applied to sale which had been adjourned or stayed without specifying any date for sale. 11. The second proviso to rule 69(2), as added by the Allahabad High Court makes it clear that the Court may dispense with the consent of any judgment-debtor who had failed to attend in answer to a notice issued under rule 66. In other words, in the instant case, the sale could take place without making a fresh proclamation under rule 67. When the executing court-regarded the steps taken by the decree-holders to be sufficient, it can be said that the Court had dispensed with the consent of the judgment-debtor on account of her failure to attend in answer to a notice under order 21. rule 66(2), C.P.C. issued at two previous occasions. 12. To sum up, the sale without a fresh notice under Order 21, rule 66(2), C.P.C. was not invalid. The sale could take place after making a fresh proclamation under Order 21, rule 67(1), C.P.C. It was not necessary to serve a notice under rule 66(2) on the judgment-debtor, nor was it necessary to draw up the sale-proclamation afresh. Consequently, the sale was not void and when no objection under Order 21, rule 90, C.P.C. was made and the sale was confirmed, it could not be set aside. 13. The Execution First Appeal is hereby allowed with costs and the order under appeal is set aside. It is further ordered that the objection made by the judgment debtor-respondent shall stand dismissed with costs throughout. 13. The Execution First Appeal is hereby allowed with costs and the order under appeal is set aside. It is further ordered that the objection made by the judgment debtor-respondent shall stand dismissed with costs throughout. Appeal allowed.