S.K. Datta, J. - (1.) This is an application made on behalf of the Defendant Maheswar Biswas in a partition suit praying, inter alia, for orders that (i) the sale by Mr. P.C. Sen, Commissioner of Partition to the Respondent Ashutosh Kumar of 21 Abinash Kaviraj Street, made on May 21, 1966, for Rs. 67,500 be set aside: (There is evidently a mistake: It would be Commissioner of Partition of Premises No. 21 Abinash Kaviraj Street); (ii) the said Commissioner of Partition be directed to return the consideration paid by the said purchaser Ashutosh Kumar; (iii) order directing the said Commissioner of Partition not to execute the conveyance to the Respondent Ashutosh Kumar until disposal of the application and other incidental prayers.
(2.) This application arises in these circumstances: In 1960 the suit was filed by Bhubaneswar Biswas for dissolution of the firm of Central Motor Garage or for declaration that the partnership firm is dissolved and for declaration of shares of the parties in premises No. 21 Abinash Kabiraj Street, partition, Receiver, injunction and other reliefs. On July 12, preliminary decree was made whereby, by consent of the parties, Mr. P.C. Sen, Barrister -at -Law was appointed as Commissioner of Partition. The said property was, sometime between 1961 and 1962, valued by the Surveyor at Rs. 34,363. On August 2, 1963, P.C. Mullick, J. made an order in these terms: The Commissioner of Partition do sell to any one of the parties at a price not less than Rs. 40,000/ - on or before June 12, 1964. In case neither of the parties are willing or able to give bid for that particular price the Commissioner of Partition do sell the property by public auction within six months from June 12, 1964. The time to sell was extended and thereupon the Commissioner of Partition put the property for sale among the parties on September 26 and at such sale the Defendant was declared the highest bidder at Rs. 54,600 and he, accordingly, deposited Rs. 6,825 being 25 per cent of the purchase money. The Defendant failed to deposit the balance money. Thereafter, on March 22, 1966, on an application made by the Plaintiff, the following order, in effect, was made by me: (a) Leave to Commissioner of Partition to forfeit the sum of Rs. 6,825; (b) As neither of the parties are willing or able to give bid the Commissioner of Partition is directed to sell by public auction. The sale must be made within three months. The reserve price is fixed at Rs. 37,000; (c) In the event of any of the parties becoming highest bidder he will be at liberty to set off his share. The signed copy of the minutes was served on the Commissioner of Partition on March 23, 1966. On March 31, 1966, a meeting was held by the Commissioner of Partition where Mr. De, Solicitor for the Defendant, stated that he could complete the searches within three weeks of the re -opening of the Court after Easter holidays and no extension of time was necessary. This remark was occasioned by reason of the observation of Mr. Rudra, Solicitor for the Plaintiff, that in view of the fact that the Defendant had created a mortgage over the property by deposit of title deeds, the sale cannot be made within three months. Thereafter the Commissioner of Partition gave directions to Mr. De for completion of the formalities. He did comply and send the requisite documents on or about April 27, 1966. On May 10, there was a meeting of the Commissioner, of Partition where the draft notice and notification of sale were settled, time and place of sale was also fixed. On May 11, 1966, another meeting of the Commissioner of Partition took place where Mr. Rudra requested the Commissioner to give directions for advertisements, at least once on the 15th or 16th, once again on 18th and lastly on May 21 and to print and circulate at least 2000 handbills containing the sale notice. The Commissioner of Partition gave directions to publish notices as requested by Mr. Rudra. Mr. De, Solicitor for the Defendant, stated that the advertisement and sale date seems to be very short, but the Commissioner of Partition pointed out that the time for completing the sale had been fixed by the Court and he was helpless, ft seems that thereupon no further objection or protest was made by Mr. De, Solicitor for the Petitioner. Thereafter the advertisements appeared between May 16 and May 21. On May 19, the Defendant took out a summons for stay of the order for sale on May 21, 1966 and prayed that his offer for purchase of the property at Rs. 54,600 be accepted. This application was dismissed by me. It is worth noticing that in this application no point was taken that the interval of time between the advertisement and the sale was short or was contrary to any provision of law. On May 21, the sale took place in the presence of many bidders. The highest bid of Ashutosh Kumar of Rs. 67,500 was accepted by the Commissioner of Partition. The purchaser paid Rs. 16,875 immediately to the Commissioner of Partition. Thereupon, on the same day, an agreement for sale was signed between the purchaser and the Solicitors of both the parties, including the Defendant. Then further proceedings were taken to complete the sale." On June 3, 1966, at a meeting of the Commissioner of Partition, Defendant Maheswar stated that he wanted to make an application for setting aside the sale and partition of the said premise's. On June 4 the Solicitor for the Defendant stated in a letter to Mr. J.R. Halder, Solicitor for the purchaser, inter alia, that (a) the parties are not agreeable to join in one conveyance and the purchase may be effected by two separate conveyances in favour of Ashutosh Kumar; (b) the Commissioner of Partition is unable to extend the time for submission of draft conveyance as the conditions of sale are binding and the time for completion of the sale has been fixed by the Court. On June 9, Mr. J.R. Haldar, Solicitor for Ashutosh Kumar, sent a cheque for Rs. 50,625. He also sent two separate conveyances to be executed by each of the parties. On July 11, 1966, the application for setting aside the sale made by the Plaintiff and consented to by the Defendant, was dismissed. Thereafter this application was made by the Defendant on July 19, 1966,.
(3.) In order to appreciate the points canvassed before me it is necessary to set out the relevant portion of Sec. 7 of the Partition Act: Save, as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely: (a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction (or of Court of the Recorder of Rangoon) the procedure of such Court in its original civil jurisdiction for sale of property by the Registrar: (b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may, from time to time, by rule prescribe in this behalf and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees. Chapter XXVII, Rule 6 of the High Court Rules, Original Side, under the chapter "Sales by the Registrar" reads as follows: The notification (or such portion thereof as the Registrar shall think necessary) of every intended sale by public auction under these rules, shall be published in such public paper's and as often as the Registrar shall direct, having regard to the nature and value of the property to be sold and shall also, where the property to be sold is out of Calcutta, be proclaimed and published in the mode prescribed by the Code for the notification of sales in execution. Order 21, Rule 68 of the Code of Civil Procedure is as follows: Save in the case of property of the kind described in the proviso to Rule 43, no sale hereunder shall without the consent in writing of the judgment -debtor, take place until after the expiration of at least thirty days in the case of immovable property and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Courthouse of the Judge ordering the sale. In the background primarily of these provisions of law Mr. Das, Learned Counsel appearing for the Plaintiff, submitted that the sale is contrary to the provision of Rule 68 of Order 21 which alone has been attracted to such a sale by the Commissioner of Partition, by virtue of the provisions of Sec. 7 of the Partition Act, read with Ch. XXVII, Rule 6 of the High Court Rules. Hence it is not a question of mere irregularity but a question of a violation of a mandatory rule laid down by the legislature, for Rule 68 states, inter alia, that "no sale" shall "take place until after the expiration of at least thirty days in the case of immovable property". This contention receives direct support from the case of Bakshi Nandkishore v/s. Mulukchand : I.L.R. (1885) All. 289where it was, inter alia, laid down that the infringement of the rule under Sec. 290 of the Code of Civil Procedure (corresponds to Rule 68 of Order 21) vitiates the sale. It is an illegality vitiating the sale and is something more than material irregularity in publishing and conducting a sale to which Sec. 311 refers. The sale is set aside. This was followed in the case of Kissen Dinaji v/s. Deorao Nathuji A.I.R. 1950 Nag. 240. This also receive support from the case of Ettu Naiher v/s. Ayamull : A.I.R. 1950 Mad. 367, which was a case of a sale proclamation not being in accordance with the mandatory provision of Rule 66 of Order 21.;