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Madras High Court · body

1991 DIGILAW 741 (MAD)

A. Padmanabhan Nadar v. T. Thanka Nadachi

1991-10-03

SRINIVASAN

body1991
Judgment :- This revision petition arises out of an application to set aside a court auction sale held on 11.4.1984. Both the Courts below have negatived the contentions of the petitioner on the ground that he has failed to prove substantial injury due to the fraud and irregularity alleged by him to have taken place in the publication and conduct of the sale. No exception can be taken to the view expressed by the Courts below that under Order 21, Rule 90, C.P.C. the last proviso is to the effect that no sale shall be set aside on the ground of illegality or fraud in publishing or conducting it unless upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. 2. Learned counsel for the petitioner contends that in the present case, the value of the property is more than one lakh of rupees and it had been undervalued in the proclamation and brought to sale by the respondent. Unfortunately, the petitioner has not let in any evidence whatever to prove the value of the property. No document has been filed and no person has been examined to speak to the value of the property. In those circumstances, the courts below are right in holding that the petitioner has failed to prove substantial injury. 3. It is argued that there is no publication of the sale as required by law and consequently, the sale is null and void. Reliance is placed upon the provisions of Order 21, Rules 67 and 54 C.P.C.. Under Rule 67 of Order 21 C.P.C., every proclamation shall be made and published in the manner prescribed by Rule 54 sub-R. (2). Under Rule 54(2) the proclamation shall be made at some place on or adjacent to the property in question by beat of drum or other customary mode and a copy of the order of sale shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house and also in the office of the Collector of the District in which the land is situate and also in the office of the Gram Panchayat. Learned counsel for the petitioner submits that in the present case, the proclamation was not published in the office of the Revenue Divisional Officer or in the Panchayat Office, and such averment was made in paragraph 4 of the application to set aside the sale. In the counter filed by the respondent the allegation was denied and it was stated that the sale proclamation was duly published and everything necessary in law was done and execution proceeded with. In the order of the executing court, the allegation made by the petitioner was accepted and it was observed that the allegation that the proclamation was not published in the office of the Revenue Divisional Officer and the panchayat office was true. But the executing court went on to hold that there being no proof of substantial injury, the irregularity did not vitiate the sale. 4. Learned counsel for the petitioner contends that the absence of publication of the proclamation in the office of the Revenue Divisional Officer and the office of the village Panchayat will vitiate the sale in entirety and the sale will be a nullity. In support of this proposition he placed reliance on the decision in Eftu Naicker vAyyammal . It is held in that case that if a proclamation is not made by the mode prescribed by Rule 54(2) of Order 21 C.P.C the effect is that there is no proclamation at all, which is mandatory under Order 21, Rule 66. That was a case in which there was no proclamation in any place. But in the present case, there has been a publication of the proclamation in the property as well as the courthouse. No allegation is made by the petitioner that there was no proclamation anywhere as prescribed by Rule 54 of Order 21, C.P.C, The only allegation is that it was not published in the office of the Revenue Divisional Officer and the office of the tillage Panchayat. When there was proclamation in two of the four places, the failure to publish the proclamation in two places only will not be an illegality as contemplated in Ettu Naickers case. Hence it is only an irregularity and the petitioner has not proved substantial injury. 5. Learned counsel placed reliance on the decision reported in D. Gurupadappa v. Ranganna AIR 1959 Mysour 38. That is also a case of absence of publication of the proclamation. Hence it is only an irregularity and the petitioner has not proved substantial injury. 5. Learned counsel placed reliance on the decision reported in D. Gurupadappa v. Ranganna AIR 1959 Mysour 38. That is also a case of absence of publication of the proclamation. The court held that it was not a mere irregularity and it was an illegality which made the sale void. That was again a case of no publication at all. The at ruling cannot apply to the present case. Learnt d counsel invited my attention to the decision reported in Hari Prasad v. Om Prakash AIR 1973 Allahabad 504. In that case, the affixture of the proclamation was made on the property other than the property sought to be sold and the court held that it was an illegality and had vitiated the sale. In that case, the court held that in the absence of proclamation on the property involved, buyers would come with a wrong notion and they would not turn up for purchasing the property in question and thus a substantial injury would be caused to the judgment-debtor. This is not a case of that type. In this case, the proclamation was affixed on the property in question and the buyers could not have been misled. 6. It is next argued by learned counsel for the petitioner that the respondent obtained leave to bid contrary to the provision of Order 21, Rule 72, C.P.C., and the lower appellate court has observed that the application for leave to bid has not been properly decided. It is observed by the lower appellate court that E.A. No. 226: of 1984 which was filed by the respondent for leave to bid was not considered properly and an order was passed thereon. But that is not one of the grounds raised by the petitioner in his application to set aside and the lower appellate court ought not to have permitted the petitioner to raise the ground before it, Moreover, that will be only be a case of irregularity and it will not be an illegality which will vitiate the sale totally. Apart from that, it is seen from the counter filed by the respondent in the executing court that the sale was sought to be held on several occasions. The first attempt was made on 25.1.1984. The petitioner deposited a sum of Rs. 400 and got an adjournment. Apart from that, it is seen from the counter filed by the respondent in the executing court that the sale was sought to be held on several occasions. The first attempt was made on 25.1.1984. The petitioner deposited a sum of Rs. 400 and got an adjournment. On the second occasion, the sale was to be held on 8-2-1984 and it was adjourned for want of bidders, An application was filed by the respondent in E.A. No. 169 of 1984 to reduce the upset price and that was allowed. On the third occasion, the sale was to be held on 28.3.1984. The petitioner deposited Rs. 150/-. and prayed for an adjournment and it was granted and the sale was adjourned to 4.4.1984. The court did not function on that day and the sale was adjourned to 11.4.1984. On 11.4.1984. The court did not function on that day for adjournment of the sale on deposit of Rs. 300/-. That application was dismissed and the sale was held. Thus, the petitioner was fully aware of the proceedings in execution and he could have taken steps in time to avert the sale. He did not do so. He cannot come and complain about the leave granted to the respondent for bidding at the auction in the lower appellate court when he has not raised a ground in that regard in the executing court. 7. It is argued that after the filing of the Civil Revision Petition, when this court passed an order of stay, the entire amount due to the decree-holder has been deposited in the executing court and the sale should be set aside because of such deposit. I do not agree. Unless the petitioner makes out that he has suffered substantial injury by reason of the material irregularity or fraud in the conduct and publication of the sale. He cannot have the sale set aside. 8. The orders of the courts below are correct and they are confirmed. The Civil Revision Petition is dismissed. There will be no order as to costs.