Decided on July 17,1963


Referred Judgements :-



- (1.)THE legal representatives of the decree-holder are the appellants and the 4th defendant- judgment-debtor the respondent. THE second appeals arise in execution.
(2.)FIVE items of properties were directed to be sold under a mortgage decree; and items 3 to 5, belonging to the 4th defendant, were directed to be sold as the first lot. Notice of draft proclamation was served on the 4th defendant and the first lot was proclaimed for sale. That lot was actually sold on 4th April, and the sale was confirmed on 4th June, 1953. More than two years thereafter, the decree-holder filed an application for amending the plaint, the decree, the sale proclamation, etc. Notice was issued in that application and on receipt of notice the 4th defendant filed two applications which have given rise to the second appeals. One of the applications was to set aside the sale & the other was to condone the delay in filing that application. The original court dismissed both the applications; but on appeal the learned Subordinate Judge reversed the orders and allowed the applications.
Both the lower courts have concurrently held that the 4th defendant was served with notice regarding draft proclamation and that finding cannot be seriously canvassed in second appeal. The next question is whether there was proper proclamation as contemplated by the provisions of the Civil procedure Code. The objection raised by the 4th defendant was that the proclamation was not published by affixture on any of the items in the first lot. On this question the primary court has held that the Amin affixed the proclamation on the properties proclaimed for sale. The learned Subordinate Judge has disbelieved the evidence on this point and has held that there was no proper affixture of the proclamation in any of the items included in the decree.

The Amin who is alleged to have affixed the proclamation is R.W.2. The properties are shown in the proclamation as lying in the Panangad amsom, whereas they are really in the Padinhare Vemballoor amsom and desom. It is this mistake that was sought by the decree- holder to be rectified by amendment after two years of the confirmation of the sale. The Amin says that he went to Padinhare Vemballoor amsom, because the properties were there. In the next breath he says that he went to Panangad amsom and the properties were shown to him. One of the witnesses to the affixture is a son of the 1st defendant. According to the 4th defendant, the Ist defendant was behind the execution proceedings and he was interested in seeing that the properties were brought to sale. This suggestion has some force, because in the notice of draft proclamation another son of the 1st defendant figures, as a witness. Besides that, as I have pointed out, the evidence of the Amin is also not above board to establish that the proclamation was affixed on the properties. If the proclamation showed that the properties lay in Panangad amsom, I fail to see why and how the Amin went to Paddinhare Vemballoor amsom, unless the proclamation was amended. This enthusiasm of the Amin, coupled with the presence of the son of the 1st defendant as witness to the affixture, is suspicious; and the learned Subordinate Judge was right in placing no reliance on the evidence of the Amin regarding the affixture. In this connection, I may observe that the learned Munsiff also appears to have evinced a little undue enthusiasm in justifying the action of the Amin. I may also observe that the strong language used by the learned Munsiff and his reference to the story of the obedient son (he means the story of Casabianca) in his judgment are a little out of taste. Ultimately, I accept the finding of the learned Subordinate Judge that the proclamation was not affixed in any part of the properties proclaimed for sale.

(3.)THE further question for consideration is regarding the effect of such failure. THE learned advocate of the appellants brings to my notice two or throe decisions. One of them is the Division Bench ruling of this Court in Philip v. Thomas (1957 KLT. 774). It has been laid down in that case that the failure to comply with the provisions of O. XXI, R. 67(2) of the Code of Civil Procedure will at the most amount only to a material irregularity, which could be relied upon for filing an application under O. XXI, R. 90 and the sale would not be illegal or void. It is evident that this decision cannot apply to the present case, because R. 67(2) deals with a discretion vested in the court to direct the publication of the proclamation in the Official Gazette or in a local newspaper; and the failure to do so can only be an irregularity, which will only entitle the judgment-debtor to have the sale set aside under O. XXI, R. 90. THE next decision cited is that of the Travancore-Cochin High Court in Pakianathan Nadar Ponnayyan Nadar v. Karthiani Pillai Parvathi Pillai (1956 KLT. 327). A perusal of that judgment reveals that there was no evidence in that case regarding the location of the properties sold or whether the place where the proclamation was affixed was or was not adjacent to the other properties. THEre was also no pleading on the question; and therefore the learned Judge held that the defect was only an omission to comply with the requirements in publishing and conducting the sale and that would not render the sale void. Thus, in that case also the defect was treated only as an irregularity.
The real question for decision is whether the failure to affix the proclamation in any part of the property proclaimed for sale is only a material irregularity or is something more than that, viz., an illegality. The Madras High Court held in Jayarama Aiyar v. Vridhagiri Aiyar (AIR. 1921 Mad. 583) that there was a distinction between an irregularity and an illegality and that was one of degree. Oldfield, J. observed that an irregularity of so serious a nature as to render the publicity which afforded one main security for the fairness of public sales must be deemed to be an illegality. Seshagiri Ayyar, J. pointed out in the same case that the Code itself gave some indication as to when a sale could be regarded as irregular and when illegal. I am also of the same opinion; and according to me, O. XXI, R. 90 itself gives sufficient indication regarding the scope & ambit of that provision. R. 90 deals with setting aside of a sale "on the ground of material irregularity or fraud in publishing or conducting it." If the defect goes beyond the realm of "material irregularity or fraud in publishing or conducting" the sale, then it is an illegality and in that case the sale is void. As observed by Seshagiri Ayyar, J. where there is no publication or conduct of sale, it is a right inference to draw from R. 90 that the sale should be regarded as illegal. In the case before me the finding of the learned Subordinate Judge, which I have accepted, is that there was no affixture of the proclamation on any of the items of properties proclaimed for sale; and that amounts to a complete absence of proclamation. Therefore, it is not a mere irregularity in the publication or conduct of the sale, but it is an illegality of there being no publication at all.


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