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PETITIONER: S. A. SUNDARARAJAN

       Vs.

RESPONDENT: A. P. V. RAJENDRAN

DATE OF JUDGMENT13/01/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SARKARIA, RANJIT SINGH

CITATION:  1981 AIR  693            1981 SCR  (2) 600  1981 SCC  (1) 719        1981 SCALE  (1)261

ACT:      Code of  Civil Procedure-Order XXI, rule 90-And section 47-Irregularities in  settling sale proclamation-Section 47, if attracted.

HEADNOTE:      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  [1964] 6  S.C.R.  1001 applied.

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JUDGMENT:      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 Respondent.      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

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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

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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. 47.      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. 604