S. A. Sundararajan Vs. A. P. V.
Rajendran  INSC 10 (13 January 1981)
SARKARIA, RANJIT SINGH
CITATION: 1981 AIR 693 1981 SCR (2) 600 1981
SCC (1) 719 1981 SCALE (1)261
Code of Civil Procedure-Order XXI, rule
90-And section 47-Irregularities in settling sale proclamation-Section 47, if
In his petition under section 47 of the Code
of Civil Procedure the appellant alleged that the sale of one of the lots of
his property which was attached pursuant to a decree of a court was vitiated in
that there were several irregularities and omissions in the proclamation of
sale and the conduct of the sale. Accepting his contention that the material
irregularities in the sale proclamation vitiated the sale, the executing court
set aside the sale.
Allowing the respondent's appeal, the High
Court held that the application for setting aside the sale lay under rule 90 of
Order XXI and not under section 47 of the Code.
Dismissing the appeal
HELD : The application for setting aside the
sale on the grounds taken by the appellant is referable to rule 90 of Order XXI
and, therefore, not to section 47. [603F] The settling of the sale proclamation
is part of the integral process of publishing the sale and irregularities
committed in the process of settling the sale proclamation are irregularities
which fall within the amplitude of rule 90 of Order XXI. [603B] The errors
complained of by the appellant amounted to mere irregularities committed in
settling the sale proclamation and could not be described as errors which
render the sale void. [602D] The requirements which were not complied with when
settling the sale proclamation were intended for the benefit of the appellant
who could waive them. They were not matters which went to the root of the
court's jurisdiction and constituted the foundation or authority for the
proceeding or where public interest was involved. They were mere irregularities
which fell within the scope of rule 90 of Order XXI C.P.C. [602E-F] Dhirendra Nath
Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh and Others
 6 S.C.R. 1001 applied.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 124 of 1981.
Appeal by Special Leave from the Judgment and
Order dated 14-6-1979 of the Madras High Court in AAO No. 386/75.
601 M. Natesan, K. Ramkumar and Mrs. J.
Ramachandran for the Appellant.
T. S. Krishnamoorthy and K. R. Choudhary for
The Judgment of the Court was delivered by
PATHAK, J.-This appeal by special leave is directed against the judgment of the
Madras High Court maintaining that objections in regard to a sale proclamation
in proceedings for execution of a civil decree can be raised under rule 90 of
Order XXI, Code of Civil Procedure.
A civil suit by the respondent against the
appellant was decreed in 1971. The attachment of the appellant's property
before judgment was made absolute on the date of the decree. To execute the
decree the respondent filed execution Petition No. 222 of 1972 and prayed for
sale of the attached property. It was decided to put up the attached property
in two lots for sale. Lot No. 1 was sold on 28th January, 1974 for Rs. 40,000/-
to the respondent. Lot No. 2 was not sold for want of bidders. The sale of Lot
No. 1 was confirmed by the court on 2nd March, 1974 and full satisfaction of
the decree was recorded. Subsequently, the appellant filed Execution
Application No. 600 of 1974, purporting to be under s. 47 of the Code, for
setting aside the sale of Lot No. 1. He claimed that the proclamation of sale
and the conduct of the sale was vitiated by several irregularities. It was
alleged that the proclamation was not drawn up in accordance with law, that
credit had not been given for a payment of Rs. 6,000/- made by the appellant
and that there were other omissions in the sale proclamation inasmuch as it did
not mention the date of auction, the tax payable in respect of Lot No. 1 and
the revenue assessment in respect of Lot No. 2. It was also alleged that the
reduction of the upset price from Rs. 80,000/- to Rs. 40,000/- for Lot No. 1
was improper and that as the appellant was an agriculturist entitled to the
benefit of Act No. IV of 1938 he was not liable to pay interest prior to 1st
February, 1972 and consequently the amount mentioned in the sale proclamation
as due from him was incorrect. The application was resisted by the respondent,
principally on the ground that it was not maintainable under s.47.
The executing Court found substance in the
complaint of the appellant and holding that the sale proclamation was vitiated
by material irregularities it set aside the sale.
The respondent filed an appeal, C.M.A. No.
386 of 1975, in the High Court against that order. Two other appeals were also
filed in the High Court, C.M.A. Nos. 2 and 3 of 1976.
They arose out of the dismissal of two 602
applications, one for restoration of an application for possession and the
other for removal of obstruction. The two applications have been dismissed as
infructuous consequentially to the setting aside of the sale.
All the three appeals by the appellant were
considered together by the High Court and, in the circumstances, the appeal
against the order setting aside the sale was taken as the main appeal. The
principal question determined by the High Court was whether the objection to
the sale could properly form the subject of a proceeding under s. 47 or under
rule 90 of Order XXI. After examining a large number of cases on the point, the
High Court held that the application for setting aside the sale lay under rule
90 of Order XXI and not under s. 47, and therefore remitted the appeals to the
executing Court for fresh consideration.
It seems to us that the High Court is right.
It is plain that the errors complained of by the appellant amount to mere
irregularities committed in settling the sale proclamation. They cannot be
described as errors which render the sale void. The difference between an error
which makes the proceeding void and one which makes it merely irregular has
been pointed out by this Court in Dhirendra Nath Gorai and Subal Chandra Shaw
and Others v. Sudhir Chandra Ghosh and Others. 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 court's jurisdiction and constituted the
foundation or authority for the proceeding or where public interest was
involved. Clearly, they were mere irregularities. Consequently, they fall
within the scope of rule 90 of Order XXI.
It may be pointed out that when rule 90 of
Order XXI employs the expression "in publishing or conducting the
sale", it envisages the proceeding commencing after the order for sale
made under rule 64 of Order XXI. The provisions after rule 64 are provisions
relating to publishing and conducting the sale. Settling the proclamation of
sale is part of the proceedings for publishing the sale. Rule 65 of Order XXI
declares that every sale in execution of a decree shall be conducted by an officer
of the court or a person nominated by the court, and shall be made by public
auction in the manner prescribed.
How the sale will be published relates to the
manner in which the sale is made. Rule 66 of Order XXI is the first step in
that behalf. It provides for a proclamation of sale.
When 603 drawing up a sale proclamation,
sub-rule (2) of rule 66 requires that the several matters specified therein be
taken into account. Other particulars relating to the sale are prescribed in
the succeeding rules of Order XXI. In our view, the settling of the sale
proclamation is part of the integral process of publishing the sale, and
irregularities committed in the process of settling the sale proclamation are
irregularities which fall within the amplitude of rule 90 of Order XXI. It may
be observed that in Dhirendra Nath Gorai's case (supra) the question which this
Court was called upon to consider was whether non-compliance with s. 35 of the
Bengal Money Lenders Act, 1940 when drawing up the sale proclamation was a mere
irregularity. Having held that it was, the Court then considered it in the
light of rule 90 of Order XXI.
Our attention has been invited by the
appellant to the Madras amendment made in 1952 in rule 66 of Order XXI where by
a new sub-rule (2) has been substituted for the original provision. It has not
been shown to us, however, that the substituted provision makes any material
difference so far as the point under consideration is concerned. It is urged
that an opportunity has been provided under the substituted provision to a
judgment-debtor to participate in the drawing up of the sale proclamation, and
therefore there is no further right to complain against the sale proclamation
under rule 90 of Order XXI. But that right was also available in somewhat
similar terms under the original provision. Whether or not a judgment-debtor,
to whom notice has been issued under rule 66 of Order XXI to participate in the
proceeding and who does not do so, should be permitted thereafter to challenge
the sale under rule 90 of Order XXI, is a matter to be determined by other
considerations. It is sufficient to point out that the application for setting
aside the sale on the grounds taken by the appellant is referable to rule 90 of
Order XXI, and, therefore, not to s.
Some argument has been addressed before us in
regard to the period of limitation but that, in our opinion, has been properly
left by the High Court to the executing Court for determination.
The appeal fails and is dismissed, but there
is no order as to costs.
P.B.R. Appeal dismissed.