A. Kuppusamy Mudaliar v. G. Subramania Mudaliar — 1997 DIGILAW 740 (MAD)

Judgment :- 1. Auction purchaser in O.S. 54 of 1975, on the file of Subordinate Judge, Arni, is the appellant as well as revision petitioner. 2. One Annamalai Mudaliar filed a suit for recovery of money against G. Subramania Mudaliar as O.S. 54 of 1975. The suit was based on a bond executed by the respondent G. Subramania Mudaliar. The suit was decreed on 8-9-1975. Pursuant to the decree, the decree-holder filed E.P. 35 of 1976 for recovery of the amount by sale of the properties. The Court fixed the upset price at Rs. 50,000/- and the sale was posted on 15-12-1976. It is seen that notice under order 21, Rule 66, C.P.C. was attempted to be served on the respondent, but was refused to be accepted and, therefore, returned. Court accepted the same as sufficient service and on the day fixed for settlement of proclamation, respondent was not present. The proclamation was settled. The sale was posted to 15-12-1976. A few days before the sale, respondent filed an application as E.A. 112 of 1976. That petition was dismissed. On the date of sale, the auction could not take place since there were no bidders. On 16-12-1976, decree-holder filed an application as E.A. 120 of 1976 to reduce the upset price from Rs. 50,000/- to Rs. 25,000/-. Notice of the same was given to the respondent, who raised serious objections. According to him, the property is worth more than Rs. 2-1/2 lakhs, and the upset price should not be reduced. In view of the objection, the case was posted to 2-2-1977. In the meanwhile, respondent filed an application under Order 21, Rule 56, C.P.C. alleging that the value of the property is more than Rs. 2-1/2 lakhs. There are income-tax arrears to the extent of nearly Rs. 78,000/- and there are also other encumbrances. The Court, after hearing the same, dismissed it. The matter was taken in Revision by the respondent in C.R.P. 1764 of 1977. In the meanwhile, respondent also filed an application under Order 21, Rule 69, C.P.C. to postpone the Court auction. In view of the earlier stay of this court in the Revision, sale was also adjourned. The Court, after hearing the same, dismissed it. The matter was taken in Revision by the respondent in C.R.P. 1764 of 1977. In the meanwhile, respondent also filed an application under Order 21, Rule 69, C.P.C. to postpone the Court auction. In view of the earlier stay of this court in the Revision, sale was also adjourned. C.R.P. 1764 of 1977 was dismissed and the Court held that the executing Court was justified in reducing the upset price and also held that the so called income-tax arrears cannot be treated as encumbrance, and therefore, it need not be mentioned. The contention of the judgment-debtor that there was an attachment over the property was also stated as unnecessary to be mentioned in the proclamation schedule. The sale came to be posted on 25-1-1978. On that date, the respondent filed E.A. 15 of 1978 under Order 21, Rule 69, C.P.C. to adjourn the sale by six months and also paid a sum of Rs. 250/- in part satisfaction of the decree amount. The sale was adjourned to 8-2-1978. On 8-2-1978 also, respondent filed E.A. 25 of 1978, to have the sale adjourned, on payment of another sum of Rs. 250/-. The Court did not entertain that application and the sale was conducted. The appellant who is the revision petitioner was the successful bidder and he bid the property for Rs. 25,005/-. On that date, the property was already encumbered for a sum of more than Rs. 60,000/-excluding interest, in respect of three mortgages, (1) mortgage in favour of one Madhiazhagan for Rs. 25,000/-, (2) mortgage in favour of Thilagavathi Ammal for Rs. 10,000/- and (3) mortgage in favour of Ideal Finance for a sum of Rs. 25,000/-. The auction purchaser, i.e., the appellant deposited the bid amount in Court and sought for confirmation of sale. 3. On 4-3-1978, the respondent filed an application under Order 21, Rule 90, C.P.C. to set aside the auction sale. As per the provisions of the Code of Civil Procedure, as amended by this Court, security also had to be furnished for entertaining such application. Therefore, the executing Court directed the respondent to furnish security. Though the respondent submitted the same, the same was rejected as insufficient against which the Revision was filed before this Court as C.R.P. No. 3217 of 1978. The Civil Revision Petition was allowed, and the matter was remanded. Therefore, the executing Court directed the respondent to furnish security. Though the respondent submitted the same, the same was rejected as insufficient against which the Revision was filed before this Court as C.R.P. No. 3217 of 1978. The Civil Revision Petition was allowed, and the matter was remanded. After remand, respondent filed another application for furnishing additional security which was also dismissed on 25-7-1980. On 5-8-1980, the auction in favour of the appellant was confirmed and the sale certificate was also issued. 4. On the basis of the Sale Certificate, the appellant/petitioner filed application to take delivery of the property. At that time, the respondent filed R.E.A. 143 of 1981 to set aside the auction under Section 47, C.P.C. 5. For R.E.A. 143 of 1981, the auction purchaser as well as decree holder filed serious objection contending that the same is barred by limitation and also on the ground that no grounds have been made out for setting aside the sale. In his application, the respondent has contended that he was not personally served with any notice under Order 21, Rule 66, C.P.C. and, therefore, the proceedings of the sale are invalid. It was also contended that there was no proper advertisement for sale of the same, and the auction purchaser is none other than the son of the decree holder. According to the respondent, the auction purchaser is only a benamidar for the decree holder and, therefore, without the sanction of Court, he should not have been allowed to purchase the property. It is also alleged therein that the property has not been properly valued and the description in the sale proclamation as well as the sale warrant was incorrect. It is a fraudulent act on the part of the decree holder which has resulted in great loss and hardship to him. 6. In the counter statement, the appellant-cum-petitioner contended that the respondent cannot challenge the alleged pre-sale irregularities since he has notice and was seriously contesting the proceedings before the executing Court as well as in this Court. He has also waived the irregularities, if any, by getting adjournment of the sale. 6. In the counter statement, the appellant-cum-petitioner contended that the respondent cannot challenge the alleged pre-sale irregularities since he has notice and was seriously contesting the proceedings before the executing Court as well as in this Court. He has also waived the irregularities, if any, by getting adjournment of the sale. It is also contended that the auction-purchaser though he is the son of the decree-holder, as a divided son, who got divided by virtue of a registered partition deed long before the institution of the suit and it is his own amount that was utilised for purchasing property. The decree holder has no right over the same. He further contended that subsequent to the sale, the deposit which he made was taken by the various decree holders in various suits against the respondent and that amounts to satisfaction of the decree. Third parties, rights have also intervened, and the sale should not be set aside. It was also contended that he purchased the property for a reasonable price and the allegation that it was for a very low price the auction was conducted is incorrect. There was no fraud played either by decree holder or by the appellant, either in publishing or conducting the sale, and no sufficient ground has been made out for setting aside the sale. They prayed for dismissal of the application. 7. The executing Court took oral and documentary evidence in this regard. On the side of the respondent, Exs. A-1 to A-27 were marked, and on the side of the appellant, Ex. B-1 to B-5 were marked. Respondent was examined as P.W. 1 and another witness was examined as P.W. 2. Appellant was examined as D.W. 1. The Court below, by the impugned order, held that grounds have been made out to set aside the sale. The executing Court has held that the settlement of proclamation was improper. The contention that the application is barred under Section 47, C.P.C. cannot be accepted. The auction purchaser, being the son of the decree holder and residing in the same house, is aware of the details of the property, and the non-mentioning of the shoprooms in the schedule property has materially affected the sale and the same amounts to fraud. The contention that the application is barred under Section 47, C.P.C. cannot be accepted. The auction purchaser, being the son of the decree holder and residing in the same house, is aware of the details of the property, and the non-mentioning of the shoprooms in the schedule property has materially affected the sale and the same amounts to fraud. Since the appellant as well as the decree holder are residing in the same house, it must be treated that the decree holder is the manager of the family and the auction purchaser, being a member of the family, has purchased it only on behalf of the family and that therefore permission is required. For all these reasons, the sale was held invalid. Application to deliver the property was also dismissed. 8. It is against the order setting aside the sale, the auction purchaser has filed the C.M.A. and against the order refusing to deliver the property, the Revision is filed. 9. Learned Senior counsel for the appellant/revision petitioner submitted that the order of the lower Court is illegal and the same is not in accordance with law. Learned Senior counsel submitted that the respondent is not entitled to contend that there is no proper proclamation since he knew the earlier proceedings, and the various orders of this Court are also a bar to contend that there was no settlement of proclamation. He further contended that the respondent himself has waived the proclamation by seeking adjournment of the sale and if that is allowed by Court, whatever may be the irregularities in the proclamation, the same cannot be reagitated after the sale. According to learned Senior Counsel, the principle of estoppel applies when there is an adjournment application and the appellants proclamation will have to be taken as accepted by the respondent also. Learned Senior Counsel also submitted that there was no evidence regarding the value of the property to come to the conclusion that there was a gross under-valuation. It is his case that even according to the judgment debtor, the bid amount taken along with the encumbrances which he has discharged is near the market value of the property. Regarding the settlement of proclamation also, learned Senior Counsel submitted that the property has been rightly described with all boundaries, survey numbers, though the number some buildings was omitted to be mentioned. Regarding the settlement of proclamation also, learned Senior Counsel submitted that the property has been rightly described with all boundaries, survey numbers, though the number some buildings was omitted to be mentioned. Learned Senior Counsel submitted that on this proclamation, objection was taken by the judgment debtor and it was thereafter this Court upheld the contention of the decree holder with certain so called encumbrances need not be said in the proclamation. He further contended that the auction purchaser though he happened to the son, has nothing to do with the family, and he is a separate member paying income-tax as an individual. He has got his own income for which evidence has been produced before Court. Decree holder also submitted that the application under Section 47, C.P.C. is barred by limitation. 10. As against the said contention, learned counsel for respondent submitted that the decree holder is also a person of the same locality and he is a mortgagee of the property. He knows full details of all the properties and the non-mention of the door numbers of the shop buildings has seriously affected the conduct of the sale. The upset price had to be reduced only because of the collusion between the father and son, and even now, the auction purchaser is residing in the same house, and they are members of the same family. The sale is only a benami purchase on behalf of the decree holder. According to learned counsel, if it is a benami purchase, the finding of the lower Court that sanction is required under Order 21, Rule 72(3) of the Code of Civil Procedure is mandatory and having failed to get permission, the sale is only to be set aside. 11. I will consider these contentions in seriatim. 12. The main question to be considered in this case is, whether grounds have been made out for setting aside the sale. 13. It is the case of the respondent that he was not personally served with notice under Order 21, Rule 66 of the Code. How far the said contention is correct will be considered hereafter. 14. While narrating the facts, I have already said that the proclamation was settled on 20-9-1976 by fixing the upset price at Rs. 50,000/- and the auction sale was posted to 15-12-1976. How far the said contention is correct will be considered hereafter. 14. While narrating the facts, I have already said that the proclamation was settled on 20-9-1976 by fixing the upset price at Rs. 50,000/- and the auction sale was posted to 15-12-1976. It is in respect of this auction of the Court, respondent submits that he has no notice. What happened thereafter is relevant for consideration. 15. On 9-12-1996, i.e., before the date of sale, he filed an application as E.A. 112 of 1976 to set aside the order settling the proclamation. On 15-12-1976, the sale could not take place since there were no bidders. On the next day, the decree holder filed an application in E.A. 120 of 1976 to reduce the upset price from Rs. 50,000/- to Rs. 25,000/- notice of which was given to the respondent. A serious objection was taken by the respondent. In his counter which was filed by him, he has said that the property was worth Rs. 2,50,000/-. It is further stated therein that the house situated in the property is situated in the heart of the town and Tahsildar has given a solvency Certificate valuing the sale item at Rs. 1,50,000/-. He also contended that the Income-tax authorities have attached the property for recovery of a sum of Rs. 77,628/- and the said order passed by the income-tax authorities also should be shown in the proclamation. He also contended that the attachment by the Income-tax Department is an encumbrance. He prayed that the value suggested by him may also be considered, while fixing the upset price, when the property is brought to sale. The executing Court dismissed it. Aggrieved by the order, respondent herein filed C.R.P. 1847 of 1977. Even though he contended that the value of the property will be Rs. 2 1/2 lakhs, he did not want that matter to be pursued in Revision, and the only point that was submitted before this Court was, whether the attachment by the income-tax authorities should be shown as an en cumbrance over the property in the proclamation and whether the order of the lower Court reducing the upset price is correct. This Court, as per order dated 29-3-1977, held thus:— “I am unable to agree with the contention and I do not think that such an attachment should be shown in the sale proclamation. This Court, as per order dated 29-3-1977, held thus:— “I am unable to agree with the contention and I do not think that such an attachment should be shown in the sale proclamation. As the lower Court has rightly pointed out it is for the income-tax authorities to take precautions to secure their amount. Coming now to the question whether the order reducing the upset price is proper as the executing Court has pointed out there were no bidders on the earlier occasions. Under these circumstances, the Court was constrained to reduce the upset price and it cannot be said that the Court has no jurisdiction to do so, nor can it be said that the Court in so ordering reduction of the upset price has done so on an arbitrary basis. I, therefore, find that the order of the Court below is quite correct and these Re vision petitions are dismissed. No costs.” 16. In this connection, it may also be noticed that after reducing the upset price, there was fresh proclamation. The same is clear from the copy of the order produced by the respondent himself. After the respondent filed his counter to reduce the upset price, the case was posted for enquiry a number of times and on 7-7-1977, the Court ordered that enquiry by both sides was over, and the matter was adjourned for Orders on 8-7-1977. On 8-7-1977, orders were pronounced. The Court passed the following Order:— “In the result, settlement of proclamation by 27-7-1977.” On 27-7-1977, the Court held that the property has to be sold in one lot and the upset price which was originally fixed was reduced by Rs. 25,000/-, and the case was adjourned for proclamation and sell, to 31-8-1977. So, it is clear from the above proceedings that there was fresh proclamation after the upset price was reduced, and that too after hearing the respondent. 17. I said that the case was originally posted for sale on 15-12-1976. Regarding the sale posted for that date, it is seen that notice was sent from Court, and, from the evidence, it is seen that the respondent refused to accept the same. That is why the contentions that are taken in all the Applications are that the notice has not been served personally, and not that the notice has not been served. That is why the contentions that are taken in all the Applications are that the notice has not been served personally, and not that the notice has not been served. Respondent has also, in his evidence as P.W. 1, said that he has not refused to accept notice. But, it is seen from the evidence that notice was tendered to him, and the endorsement of refusal was accepted by Court as sufficient service. At any rate, the alleged non-service loses its importance when the respondent himself files an application regarding valuation and when he filed a Revision before this Court, he did not want that valuation given by him to be incorporated in the settlement of proclamation. In this connection, in the counter statement, he has no case that the proclamation is defective in any other way, and he has no case that the property has not been described properly. Except regarding the valuation, regarding the property description, no objection was raised. 18. After the upset price was reduced, the case was posted for sale on 31-8-1977. On that date, the respondent herein filed an adjournment application under Order 21, Rule 69, C.P.C., i.e., as per E.A. 148 of 1977. It may be stated that during that time, there was also an order of stay from this Court in C.R.P. No. 1764 of 1977 (stated above). After the dismissal of the Civil Revision Petition, the sale was posted to 25-1-1978. On that date, the respondent filed E.A. 15 of 1978. On that date, the respondent filed E.A. 15 of 1978 under Order 21, Rule 69, C.P.C. He wanted an adjournment of the sale on payment of Rs. 250/- and to record part satisfaction. The Court granted an adjournment, and the sale was adjourned to 8-2-1978. On 8-2-1978, respondent again filed E.A. 29 of 1978, praying for adjournment of sale, and that too on part payment. The Court did not accept the prayer, adjournment was not granted, and the sale was ordered to be conducted. The property was sold and the petitioner herein purchased it. Before proceeding with the matter further, the exact relief sought for in E.A. 15 of 1978 required consideration. The prayer reads thus:— Tamil It may be stated that in the affidavit filed in support of that E.A. also, the respondent has agreed for a sale being conducted without any fresh proclamation. Before proceeding with the matter further, the exact relief sought for in E.A. 15 of 1978 required consideration. The prayer reads thus:— Tamil It may be stated that in the affidavit filed in support of that E.A. also, the respondent has agreed for a sale being conducted without any fresh proclamation. According to me, the said proceeding taken along with the other proceedings referred to above, will be sufficient to hold that even if there is any defect in the proclamation, that is deemed to have been waived. In one of the very early decisions reported in 3 Indian Appeals 230 (Girdhari Singh v. Hurdeo Narain Singh and others, their Lordships of the Privy Council had occasion to consider a similar question. In that case, a sale was conducted, and the case was posted for confirmation of sale. At that time, the judgment debtor objected that there was a material error in the proclamation since the amount due to the Government revenue was not mentioned. Before the sale, the judgment debtor had moved for an adjournment of the same. The executing Court took into consideration that in the settlement of proclamation, the Government revenue was not stated and, therefore, did not confirm the sale. It was in those circumstances, the matter was taken to the Privy Council. While considering the same, their Lordships said thus:— “although the alleged inadequacy of price was no ground for refusing to confirm the sale, yet that the above error in specifying the amount of Government revenue was an irregularity for which on proof of substantial injury to the judgment debtor therefrom the sale might have been set aside; but that the above petition for postponement amounted to an admission by the judgment debtor that the notification was correct, or that there was no such irregularity as would be likely to mislead.” (Emphasis supplied) 19. In A.I.R. 1938 P.C. 230=48 L.W. 199 (Syam Sunder v. Kaluram), their Lordships held thus:— “There is a distinction in law between waiver and admission; in the case of waiver a person is not to be held to have waived a right of which he was reasonably ignorant, but in the case of a representation or admission which is acted on, the party making it cannot plead ignorance unless it is induced by the other party, for if he does not choose to enquire before hand, he takes the risk of error. The waiver of the necessity for a fresh proclamation necessarily implies a waiver of objection to any defect appearing on the face of the sale proclamation. But the waiver of any necessity for a fresh proclamation would not imply a waiver of the right to object to any irregularities in the attachment.” 20. In A.I.R. 1934 Calcutta 251 (Naresh Chandra Lahiri v. Jogesh Chandra Majumdar), it was held thus:— “Where the judgment-debtor in his application for adjournment of sale waives all irregularities in service of notice and proclamation and also of inadequacy of price, he is precluded from raising any question of irregularity even if such irregularity existed.” 21. In another decision reported in A.I.R. 1956 Bombay page 147 (Budhamal Hajarimal, etc. v. Laxmibai Bhr. Baburao), in paragraph 11 (at page 150) a learned Judge of the Bombay High Court held thus:— “If having knowledge of the defect in the sale proclamation the judgment debtor stood by and permitted a third person to purchase the property at the court auction when there was insufficient description of the property in the sale proclamation, the judgment-debtor must be regarded as estopped from contending that there was material irregularity in the publication of the sale.” In this case, the sale was conducted, after the amendment of the Code of Civil Procedure by Act 104 of 1976. 22. In Rule 90 of Order 21, C.P.C., Sub-rule (3) was added, and it reads thus:— “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.” 23. 22. In Rule 90 of Order 21, C.P.C., Sub-rule (3) was added, and it reads thus:— “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.” 23. In 1993 A.I.R. S.C.W. at page 3458 (Desh Bandhu Gupta v. N.L. Anand and another), in paragraph 50 of the judgment (at page 3471), their Lordships have said about the scope of the newly added sub-rule. After extracting the sub-rule, their Lordships have said: “Undoubtedly, this special rule was brought on statute by 1976 Amendment Act. It is like a “caveat emptor” that the judgment debtor be vigilant and watchful to vindicate pre-sale illegalities or material irregularities. He should not stand by to procrastinate the execution proceedings. If he so does. Rule 90(3) forewarns him that he pays penalty for obduracy and contumacy. Equality it is a reminder that the Court should be strict to comply with the procedural part under Rule 54(IA) before depriving the JD of the remedy under O. 21 Rule 90, C.P.C. If he had notice from Court and acquiesced to take action before the date of sale, he would be precluded to assail its legality or correctness thereafter.” (Emphasis supplied) In that case, on facts, the Supreme Court found that the judgment debtor was not served with Rule 66 Notice, nor did he get notice about the drawing of the proclamation. In that view, their Lordships said that Rule 90, sub-rule (3) has no application. 24. In A.I.R. 1995 Kerala 70 (K.V. Antony v. Catholic Syrian Bank Ltd.), the decision of the Supreme Court cited supra was followed wherein it was held thus:— “Rule 90(3) of Order 21 contains yet another interdict against setting aside a Court sale. It is in the following language: “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.” This provision was brought in the Code only in 1976, and the object is to make the judgment-debtor to be more circumspect and to inform the Court, right in time, of his objections. If he omits to do so without satisfactory cause, he cannot be heard to say on such objections subsequently.” 25. If the judgment-debtor knew the details of the sale proclamation and, even though he challenged before this Court, he did not want his valuation to be incorporated in the sale proclamation, and this Court also accepted the proclamation, and allowed the decree-holder also to reduce the upset price, any adjournment application by the judgment debtor waiving fresh proclamation will prevent him from agitating the validity of the proclamation thereafter. Learned counsel for the respondent relied on the decision reported in A.I.R. 1945 P.C. 67 = 58 L.W. 156 (Maradanayagam Pillai v. Manicka vasakam Chettiar) wherein their Lordships held that if a low valuation of the property to be sold in the sale proclamation was based on a misstatement by the decree-holder, any adjournment sought for by the judgment-debtor will not preclude him from agitating the legality of the proclamation. In that case, their lordships said that ‘if the decree-holder knew the true value of the property but deliberately under valued it in the sale proclamation and himself purchased the property at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the Court and he would not be allowed to take advantage of his own fraud whatever the conduct of the judgment-debtor might have been’. In that case, their Lordships said that ‘efficacy of a plea of waiver by the judgment-debtor depended on the ability of the decree-holder to prove that the judgment-debtor knew the true facts from which an intention on his part to waive his right to object to a misstatement in the proclamation could be inferred’. 26. In this case, even if we accept the principle enunciated in the above decision, I do not think, the judgment debtor can exonerate himself from the consequences of waiver. It is in evidence that the entire property was valued at Rs. 49,000/- when the mortgage deed was executed in favour of the decree-holder. That was in respect of the properties including various door numbers which are mentioned in the sale proclamation. It is in evidence that the entire property was valued at Rs. 49,000/- when the mortgage deed was executed in favour of the decree-holder. That was in respect of the properties including various door numbers which are mentioned in the sale proclamation. P.W. 1, in the earlier portion of his cross-examination, has said thus:— Tamil The respondent has no case that the value of the entire property as on that date was wrongly represented. When he admits Rs. 49,000/- as the market value, we have to see whether there was any misstatement at the instance of the decree holder, and that too deliberately, while fixing the upset price. At the time when the sale was proclaimed, it was not disputed that the properties were already outstanding on three mortgages to the extent of more than Rs. 60,000/-, excluding interest. Appellant/petitioner purchased the property for Rs. 25,005/subject to these mortgages. The mortgage in favour of the decree-holder is in the year 1974 and the sale was conducted in 1978. Even if we take an increase in the price, can it be said that there was a deliberate and intentional fraudulent act on the part of the decree holder to reduce the upset price. The facts stated above are clear that the decree holder has also acted reasonably by making mention of all the encumbrances, and it was subject to these encumbrances, appellant purchased the same. Notice of these was also given to the judgment debtor and he raised an objection. But this Court upheld the sale proclamation. At that time, the judgment debtor did not have a case that there was any suppression of material fact, nor was there any material omission of any fact which was necessary to be included in the sale proclamation. I have already said that at the time of reducing the upset price, a detailed affidavit was filed by the respondent himself wherein there was no reference to the shop buildings, and he has also no objection to the description of property. 27. In the sale proclamation, all the three survey numbers are mentioned. The existence of a house building is also mentioned. The boundaries are also specifically stated and it is not disputed by the respondent that there is any variance in the boundaries as stated in the mortgage deed and the sale proclamation. 28. 27. In the sale proclamation, all the three survey numbers are mentioned. The existence of a house building is also mentioned. The boundaries are also specifically stated and it is not disputed by the respondent that there is any variance in the boundaries as stated in the mortgage deed and the sale proclamation. 28. Even in the present application, petitioner has not averred that the non-mentioning of the door numbers of the shops has materially affected the sale. The only contention that is raised is, that the description of the property furnished in the sale warrant as well as sale certificate are not correct. Even though there is an allegation that the order of attachment was not affixed in the Municipal Office at Thiruvannamalai, P.W. 1 does not speak about it. In the evidence of P.W. 1, he only says that there was no tom tom in the conduct of sale. No such allegation was made in the petition. As it stands, a major part of the evidence and the main contention that is raised in the application is the so-called irregularities in the sale proclamation and conduct of the sale. In this connection, it may also be noted that the very same respondent filed an application under Order 21, Rule 90, C.P.C. for setting aside the sale on the very same grounds. This Court directed him to furnish security, and the same was not accepted. It is on the very same ground, the present application was also filed, though under Section 47, C.P.C. When a sale is impeached on the ground that there is an irregularity in the sale proclamation and conduct of the sale, it is Order 21, Rule 90, C.P.C. that applies and not Section 47, C.P.C. In the decision reported in A.I.R. 1964 S.C. 1300 (Dhirendra Nath v. Sudhir Chandra), their Lordships said that if certain statutory conditions are inserted by the Legislature simply for the security or benefit of the parties to their actions themselves, and no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court. In that case, their Lordships said that any irregularity in the conduct of sale can also be waived, and there is no question of any public policy involved. In that case, their Lordships said that any irregularity in the conduct of sale can also be waived, and there is no question of any public policy involved. Even though the provisions of Order 21, Rule 90, C.P.C. are prima facie mandatory, any sale conducted on the alleged irregularity is liable to be set aside under that Rule, for, it is not a nullity. In paragraph 7 of the Reports, their Lordships considered as to what is the meaning of the word ‘nullity’ and ‘irregularities’. It was held thus:— “Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar v. Behari Lal Kirtania, ILR 35 Cal. 61 at p. 72 Mookerjee, J., after reference to Mac Namara on “Nullity and Irregularities”, observed. “no hard and fast line cane be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to his whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated”. Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v. Russell, (1841) 9 Dowl 487 which reads: “It is difficult sometimes to distinguish between an irregularity and nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.” A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book “On the Interpretation of Statutes”, 11th Edn. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book “On the Interpretation of Statutes”, 11th Edn. at page 375, describes the rule thus: “Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri proso introducse. Every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy”. The same rule is restated in “Craies on Statute Law”, 6th Edn., at p. 269, thus: “As a general rule, the conditions imposed by statutes which atuhorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interest are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.” 29. The above decision of the Supreme Court was followed in (1981) 1 SCC 719 =94 L.W. 81 S.N. (S.A. Sundararajan v. A.P.V. Rajendran). In that case, in execution of a decree, the property of the appellant was sold. The sale was also confirmed. Subsequently, an application was filed purporting to be under Section 47, C.P.C. for setting aside the sale claiming that proclamation sale and the conduct of the sale were vitiated by several irregularities, the executing Court set aside the sale. But the High Court held that the application for setting aside the sale lay under Rule 90 of Order 21, C.P.C., and not under Sec. 47, C.P.C. and, therefore, the matter was remanded for fresh consideration. The same was challenged before the Supreme Court. It was held by their Lordships thus:— “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 21. The same was challenged before the Supreme Court. It was held by their Lordships thus:— “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 21. The requirement which were not complied with in this case when settling the sale “The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him” They were not matters which went to the root of the Courts jurisdiction nor constituted the foundation or authority for the proceeding nor involved public interest. Clearly, they were mere irregularities and cannot be described as errors which render the sale void. Consequently, they fall within the scope of Rule 90 of Order 21.” The facts in that case are similar to the facts on hand. 30. A Division Bench of the Andhra Pradesh High Court, in A.I.R. 1965 A.P. page 334 (Ramadasjee Varu v. Tirupathi Devasthanams), has held thus:— “Where in order to obtain an adjournment of sale, the judgment debtor consents to waive the issue of a fresh publication of the sale proclamation, the effect of this waive is to imply necessarily a waiver of an objection as to any of the defects apparent on the proclamation.” 31. In the decision aforementioned, the Andhra Pradesh High Court followed the decision of Privy Council reported in AIR 1938 PC 230=48 L.W. 199 (Supra). 32. In 1971 - Volume-1 I.L.R. Kerala Series, at page 70 (Hajira Umma v. Chandrasekharan Nair), it was held thus:— “As a matter of fact, he waived his objections to the proclamation when it was issued after incorporating the price mentioned by him in his objection. It has to be inferred from his conduct that he had consented to the sale being held on the said proclamation on the adjourned date. It has to be inferred from his conduct that he had consented to the sale being held on the said proclamation on the adjourned date. The Privy Council in Girdhari Singh v. Hurdeo Narain Singh held as follows:— “Although the alleged inadequacy of price was no ground for refusing to confirm the sale, yet that the above error in specifying the amount of Government revenue was an irregularity for which on proof of substantial injury to the judgment debtor therefore the sale might have been set aside; but that the above petition for postponement amounted to an admission by the judgment-debtor that the notification was correct, or that there was no such irregularity as would be likely to mislead.” On similar lines is the decision of the Privy Council in Arunachalam Chetti v. Arunachalam Chetty. Therein the learned Judges observed: “Therefore, as far as regards the objection that the description was insufficient, which is relied upon, as up their Lordships understand, as vitiating the sale-for that appeared to be the contention of the counsel for the respondents-the objection was not taken until the sale has been completed. The judgment-debtors knowing, 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. It appears to come within what was laid down by this Board in Olpheris v. Mahabir Pershad Singh - law Rep. 10 Ind. App. 25 that if there was really a ground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtors could lie by, and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution-creditor or decree-holder might be perfectly ignorant that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in Their Lordships opinion, cannot be allowed, and on that ground the High Court ought not to have been given effect to this objection.” On the above authority it must be held that the judgment-debtor has consented to the sale by waiving all objections to the proclamation and in the circumstances I see no ground to interfere in revision”. 33. In A.I.R. 1964 Rajasthan page 84 (Kalu Ram v. Shambhoo Singh and another), it was held thus:— “Where the judgment-debtor accepted the postponement of the sale on the term imposed by the Court that fresh proclamation will not be issued, he will be deemed to have consented to waive the fresh proclamation. He is estopped from urging that the failure to issue a fresh proclamation for the sale held on adjourned date and subsequent dates was a material irregularity in conducting the sale.” 34. In A.I.R. 1995 Kerala 70 (Supra), a decision of the Supreme Court reported in 1991 AIR SCW 206= AIR 1991 SC 770 (Supra) was followed where it was held that under Order 21, Rule 90, C.P.C., it is not sufficient for the appellant to contend that there was an illegality or irregularity in the conduct of the sale; he must also prove by adducing sufficient facts that some substantial injury has been caused to the petitioner. 35. In the decision of the Supreme Court referred to supra, permission was not obtained by the decree-holder for purchasing the property, as contemplated under Order 21, Rule 72, C.P.C. Even, in spite of the statutory provision, the Supreme Court only said that the sale is not liable to be set aside unless substantial injury is caused. In the case on hand, before sale, the judgment-debtor was participating in proceedings and he did not object regarding the description of property and it came to this Court in Revision, he did not raise the question that the property is undervalued and his value as stated in the counter must also be incorporated in the settlement of proclamation. It was thereafter he moved for an adjournment of the sale. Whatever may be the alleged irregularity, the Order of this Court in Revision and the subsequent conduct of the respondent, prevent him from agitating the question once again. 36. The further question that arises for consideration is, regarding the purchase by the revision petitioner. It was thereafter he moved for an adjournment of the sale. Whatever may be the alleged irregularity, the Order of this Court in Revision and the subsequent conduct of the respondent, prevent him from agitating the question once again. 36. The further question that arises for consideration is, regarding the purchase by the revision petitioner. It is contended by the respondent that the auction purchaser is none other than the son of the decree holder-mortgagee. They constitute a joint family. The funds deposited were really raised by the decree-holder, and in fact, the auction purchaser is only a benami purchaser for the plaintiff. 37. The same was seriously opposed by the revision petitioner. It is also a case where the respondent has to prove the said allegation. In the chief-examination, the only statement is, Tamil This is the only sentence put forward in the chief-examination. Regarding the financial position of the auction purchaser, P.W. 1 says thus:— Tamil In this case, the auction purchaser has proved by documentary evidence that long before the suit was instituted, himself, his brother and father have entered into individual partnership as evidenced by Ex. B-1 dated 12-3-1972. It is also proved by documentary evidence that he is assessed to income-tax and he is assessed individually. He has also deposed as D.W. 1 that he has business of his own and the amount deposited, belongs to him. Neither his father nor his brothers have any share or right over it. Regarding the source of money, P.W. 1 has no case that it was the decree holder who deposited the same. He did not say anything about the deposit made by D.W. 1. Merely because the auction purchaser happened to be the son of the decree-holder, it cannot be contended for a moment that it is a benami purchase. In a case reported in 1994-1-L.W. 197 (Paramasivam. P v. Venkatachala Gounder & 2 others), on the facts of that case, Their Lordships held that when the auction purchaser did not prove his private funds and the decree holder was also a member of the undivided family, the purchase must be on behalf of the decree-holder. In a case reported in 1994-1-L.W. 197 (Paramasivam. P v. Venkatachala Gounder & 2 others), on the facts of that case, Their Lordships held that when the auction purchaser did not prove his private funds and the decree holder was also a member of the undivided family, the purchase must be on behalf of the decree-holder. In that case, it was held as follows:— “When the decree holder and auction purchaser are father and son and belong to an undivided Hindu joint family and when there is no evidence that he has got any private funds, the presumption is that he made the purchase from out of the joint family funds.....” In this case, evidence has been let in to show that the revision petitioner has different source of income and the evidence of P.W. 1 also supports the same. If the auction purchaser has utilised his own funds, there is no scope for getting sanction under Order 21, Rue 72-A, C.P.C. In his evidence as D.W. 1 he has also stated that earlier the sale could not take place due to want of bidders. He also said that subsequent to the sale, he has discharged the mortgage debts, he asserts in his examination by saying, Tamil From the evidence, it is clear that the case put forward by the respondent that the auction purchaser is a name lender for the decree holder is without any basis. 38. Petitioner has deposited the entire amount in time and it is in evidence that the entire amount was also realised by the other decree holders in various suits filed against the respondent. The details of such withdrawals are referred to in paragraph 10 of the counter statement. It makes it clear that the debts that are liable to be discharged by the respondent have been discharged by making the deposit. In fact, the amount was allowed to be withdrawn long before the present application was filed. If the respondent himself has allowed the amount to be withdrawn by their creditors, an inference has to be drawn that they accept the sale. 39. It is also contended by learned Senior Counsel for the petitioner that the present application is also barred by limitation. The sale was conducted on 8-2-1978 and the present application was filed on 12-3-1981. The application has been filed either under Article 127 or 137 of the Limitation Act. 39. It is also contended by learned Senior Counsel for the petitioner that the present application is also barred by limitation. The sale was conducted on 8-2-1978 and the present application was filed on 12-3-1981. The application has been filed either under Article 127 or 137 of the Limitation Act. If it is an application under Article 127, the application has to be filed within 60 days from the date of sale. If it is an application under Article 137, respondent will be getting a period of three years from the time the right to apply accrues. Even if the application is to be filed when the right to apply accrues, that can also be only from the date of sale unless the respondent has a case that he was prevented by any fraud committed by the decree. There is no fraud alleged against the decree holder. What the respondent pleads is only certain irregularities alleged to have been committed before 8-2-1978. Even before that period, he has participated in the proceedings and has come to this Court also. Fro m 1978 to 1981, the respondent has no case that he was prevented by any one from filing the application. While commenting on Article 127 of the Limitation Act, in ‘U.N. Mitras Law of Limitation and Prescription - 10th Edition (1992), in Note 13 at page 1885, the learned Author has said thus:— “But if the effect of the fraud was also to keep the applicant out of the knowledge of his right to apply Section 18 of the Limitation Act of 1908 could be invoked and limitation would run from the time of his knowledge only. The benefit of Section 18 was available if two requirements were satisfied, namely, (a) the fraud must have been practiced by the opposite party, and (b) the person having the right to apply was by reason of the fraud kept from the knowledge of his right to apply. The mere fact that the cause of action was founded on fraud was not enough to bring a case within the section.....” The lower Court did not consider any of these legal principles, nor has it considered the scope of Sec. 47 or Order 21, Rule 90, C.P.C. The question of waiver was also not taken into consideration by the lower Court. 40. 40. Learned counsel for the respondent relied on the decision reported in 98 L.W. 485 (V.P. Sarangapani Kounder and another v. Mercantile Credit Corporation Limited, Madras.). Relying on the said decision, learned counsel for the respondent submitted that under the Code of Civil Procedure, as amended by the Madras High Court, omission to state in the order of settling the proclamation the value of the property by the judgment debtor amounts to a material irregularity, and that itself is sufficient to set aside the sale. The effect of the Madras Amendment was also taken note of by the Supreme Court in the decision reported in (1981)1 SCC 719 (supra). In paragraph 7 of the judgment, their Lordships said that it only enables the judgment debtor to participate in the settlement of proclamation, which right was available even without the amendment. Their Lordships said that even in such a case, the sale could be set aside only under Order 21, Rule 90, C.P.C. and not under Section 47, C.P.C. I have already stated that the judgment debtor was given sufficient opportunity and he availed the same. Later, he himself waived that right. The said decision has no application to the facts of this case. 41. Learned counsel for the respondent relied on the decision reported in JT 1995 (3) S.C. 387 (Nani Gopal Paul v. T. Prasad Singh and others), where the appellant therein became the successful bidder of the property for Rs. 60 lakhs and he paid into Court only Rs. 5 lakhs. The learned single Judge confirmed the sale and the matter was taken in Appeal before a Division bench. From the statement of facts as stated in the judgment of the Division Bench, it is seen that though the property was sold to the appellant for Rs. 60 lakhs, there were other bidders who offered a higher amount, and that too of a great magnitude. It was, after taking note of the same, the Division Bench, though commented on the action of the single Judge, did not take any action. When the matter was taken to the Supreme Court, their Lordship said that the Court cannot remain as a silent spectator to a grave illegality committed by Court and the Court sale will have to be set aside, even though the application was not filed in time. When the matter was taken to the Supreme Court, their Lordship said that the Court cannot remain as a silent spectator to a grave illegality committed by Court and the Court sale will have to be set aside, even though the application was not filed in time. I do not think, the said case will have any application to the facts of this case. Learned counsel also relied on the decision in the same volume at page 367=1997-1-L.W. 765 (Lal Chand v. VIII Additional District Judge & others) wherein the question raised was regarding the effect of a Court sale when no sanction was obtained from Court under Order 21. R. 72 C.P.C. Two Judges Bench held that since the sale conducted was clearly in violation of Order 21, Rule 72, C.P.C. the same has to be set aside. In this connection, I have already referred to a decision reported in 1991 AIR SCW 206 where a three member Bench has held that even though sanction under Order 21, Rule 72, C.P.C. is required, that by itself is not sufficient to set aside the sale unless substantial injury is also pleaded and proved. In the decision cited by learned counsel for the respondent, I do not think the earlier decision of the Supreme Court was cited. In this case, that case also may not have any relevance, Because, here, it is not the decree-holder who has purchased the property, and no sanction is required. 42. In 1954 Madras Weekly Notes 492=67 L.W. 605 (Srikakula Chinna Venkatanarayana and others v. Pannapati Elias) Rajamannar, C.J. held that sale by proclamation or without any publication is void, and not merely voidable. I do not think, the respondent has any such contention in the case on hand. 43. ILR 38 Madras 387 (Umkadi Rajah Rajai Raja of Kalahasti v. Maharaja of Venkatagiri) was also relied on by learned counsel for respondent. The case pleaded was material irregularity in the publication of sale proclamation, under statement of revenue due on the land, etc. In that case, no objection was raised by the judgment debtor since he was not aware of his interest. Their Lordships held that the principle of estoppel may not apply, and even though the irregularities were before the sale, he is not prevented from disputing the validity of the procedure adopted by Court. In that case, no objection was raised by the judgment debtor since he was not aware of his interest. Their Lordships held that the principle of estoppel may not apply, and even though the irregularities were before the sale, he is not prevented from disputing the validity of the procedure adopted by Court. In this case, the respondent has no case that he was misled by any act of the decree holder. He was opposing every action of the decree holder. Various applications were filed and finally he also waived fresh proclamation. Further, Sub-rule (3) to Rule 90 of Order 21, C.P.C. was added by the Amendment. The said decision also has no application to the case on hand. The decision reported in 12 MLJ 261 (Chinna Dandasi v. P. Tatiah) has no relevance in this case. There, in a decree for sale, property not covered in the mortgage decree was also included due to fraud played by decree-holder. This Court held that the judgment debtor is entitled to raise a plea regarding invalidity of the Court sale even though he unsuccessfully applied under Order 21, Rule 89, C.P.C. to have the sale set aside. It is settled law that fraud vitiates all actions and the same cannot be an answer in a Court of law. ILR 17 Madras 282 (Sankunni v. Raman), relied on by learned counsel for respondent, is a case of benami purchase, by an agent of the judgment debtor himself. The suit was between the judgment debtor and the benami purchaser. Their Lordships held that such a suit is maintainable. I do know the purpose for which the said decision was cited. Learned counsel also relied on the decision was cited. Learned counsel also relied on the decision reported in 1944-2-M.L.J. 114 (Soorianarayana v. Shenbagathammal) wherein the proclamation was settled by substituted service. In that case, it was held that such a service does not amount to clear notice. When the validity of the execution sale was in question, the Court said, it will not amount to estoppel. Learned counsel also relied on the decision reported in 45 M.L.J. 346=18 L.W. 757=ILR 46 Madras 768=74 I.C. 155 (F.B.) (Chidambara v. Kandaswamy). There, the question was regarding the validity of the attachment. The judgment debtor did not participate while the property was proclaimed for sale. Learned counsel also relied on the decision reported in 45 M.L.J. 346=18 L.W. 757=ILR 46 Madras 768=74 I.C. 155 (F.B.) (Chidambara v. Kandaswamy). There, the question was regarding the validity of the attachment. The judgment debtor did not participate while the property was proclaimed for sale. On his death, his legal representatives applied for release of the property on the ground that it is not liable to be attached. Their Lordships held that the principle of res judicata or estoppel will not arise in such cases. From the facts, it is clear that the above decision also will not have any application to the facts of this case. 44. I summarise my conclusions as hereunder. 45. The respondent had notice of the sale proclamation. Even though Order 21 Rule 66 C.P.C. notice was not served on him personally (the case is that he refused to accept the same), subsequently he himself participated in the proceedings, and after hearing him, the upset price was reduced. There was subsequent settlement of proclamation. The reduction of upset price was challenged in Revision before this Court, but without success. Thereafter, when the property came for sale, with the knowledge of details of the proclamation, respondent applied for adjournment of sale, waiving fresh proclamation. Once he has waived the fresh proclamation, it is implied that he has waived as to any of the defects apparent on the proclamation (Emphasis). The main objection of the respondent is that the various door numbers of the shop buildings are not mentioned. The non-mention of it is an apparent defect, and in view of the waiver, he is precluded from challenging the proclamation once again. There is no gross undervaluation, and the sale has taken place for the proper value, and no evidence was also adduced to show regarding the value of the property on the date of sale. The various irregularities alleged in the petition could be raised only under Order 21, Rule 90, C.P.C. and not under Sec. 47, C.P.C. The application-cum-petitioner is not a purchase on behalf of the decree holder and he has purchased the property with his own funds. The order of the lower court setting aside the sale under Section 47, C.P.C. is illegal and, therefore, it is set aside. The Civil Miscellaneous Appeal is allowed. 46. The order of the lower court setting aside the sale under Section 47, C.P.C. is illegal and, therefore, it is set aside. The Civil Miscellaneous Appeal is allowed. 46. The auction purchase applied for delivery of the property on the basis of Sale Certificate issued to him. Since the sale was set aside, the lower court refused to deliver the property. Since I hold that the application is under Section 47, C.P.C., and the same is liable to be dismissed, petitioner is entitled to get possession of the property. On receipt of a copy of this judgment, lower Court is directed to hand over possession of the property to the petitioner without any further delay. There will be no order as to costs in these proceedings. C.M.A. and C.R.P. are allowed. No costs.