Report No. 27
Order XXI, rule 90
Sub-rule (1).-The words "or purchaser" have been added to make it clear that an auction-purchaser can also apply. This will set at rest the conflict of decisions on the subject1.
1. See Mulla Civil Procedure Code (1953), under Order 21, rule 90, p. 899, under "Auction-purchaser".
Order XXI, rule 90 and deposit
A recommendation has been made in the Fourteenth Report1 to the effect that a person applying to set aside the sale under rule 90 should be required to deposit an amount not exceeding 121/2 per cent. of the purchase price2, which amount can be utilised for awarding costs if the application fails. As the amount of such costs would not be very-large, it is considered unnecessary to carry out this recommendation.
1. 14th Report, Vol. 1.
2. Cf. Allahabad Amendment.
Order XXI, rule 90 and objections which could have been taken earlier
A recommendation was made in the Fourteenth Report1 to the effect, that a sale shall not be set aside on the ground of any defect in the proclamation of sale at the instance of any person who did not attend (though given notice to appear) at the drawing up of the proclamation, or at the instance of any person in whose presence the proclamation was drawn up, unless the objection was taken by him before the sale was held. A similar, but somewhat wider, amendment has been made by the Allahabad High Court, the effect of which is that no application to set aside a sale can be entertained upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up. The Gujarat Amendment to this rule, is still wider and runs as follows:-
1. 14th Report, Vol. I.
Gujarat Amendment to Order XXI, rule 90
"Provided also that no such application for setting aside the sale shall be entertained without the leave of the Court upon any ground which could have been, but was not, put forward by the applicant before the commencement of the sale."
It is considered that the Allahabad Amendment should be adopted. Necessary change is proposed.
Order XXI, rule 90 and absence of attachment
The question whether absence of, or irregularity in attachment is, a defect in the "publication or conduct of the sale" has been discussed in several decisions1. At one extreme is the view that attachment is not necessary at all before sale2. At the other extreme stands the view that sale without attachment is void3. A third view is, that attachment is an irregularity, but not in publishing or conducting the sale. According to the fourth view, a sale is not a nullity because of a defect in the attachment or want thereof, but if it causes "substantial injury", it can be set aside under rule 904.
The last view seems to be the correct one. The object of attachment is to bring the property under the control of the court, and in the case of immovable property one of the requirements is that the order of attachment should be publicly proclaimed. The main object of theproclamation is to give publicity to the fact that the sale of the proclaimed property is in contemplation. The publication of the attachment is thus a step leading up to the proclamation of the sale5.
The question whether it is necessary to insert a-provision to clarify the position on the subject, has been considered. In the draft Report which had been circulated, an Explanation had been proposed to rule 90 to the effect that absence of or defect in attachment shall be regarded as an irregularity under this rule. After some consideration, it has been decided that no such provision need be inserted.
1. See AIR 1927 Cal 847; AIR 1947 Mad 213; AIR 1930 Lah 685.
2. AIR 1939 Born 277 (Beaumont C.J.).
3. Cf. Order 21, rule 64.
4. Swaminath v. Krishnaswami, AIR 1947 Mad 213 (215).
5. Sheodhyan v. Bholanath, 1899 ILR 21 All 311 (313).
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