Holding

The application for setting aside the sale on the ground of irregularities in the sale proclamation is referable to Rule 90 of Order XXI, not to Section 47 of the Code of Civil Procedure.

Summary

The appellant's property was attached and sold in execution of a decree. He claimed the sale proclamation contained several irregularities and filed an application under Section 47 of the Code of Civil Procedure to set aside the sale. The executing court agreed that the irregularities vitiated the sale and set it aside. On appeal, the High Court held that such objections fall under Rule 90 of Order XXI, not under Section 47, and remitted the matter for fresh consideration. The Supreme Court affirmed this view, stating that the alleged defects were mere procedural irregularities in the settlement of the sale proclamation and did not render the sale void. Consequently, the appeal was dismissed.

Issues considered

Whether an objection to irregularities in a sale proclamation can be raised under Section 47 of the Code of Civil Procedure or under Rule 90 of Order XXI.
Whether the irregularities alleged in the sale proclamation render the sale void or merely irregular.

Legislation cited

Act No. IV of 1938
Code of Civil Procedure, 1908s. 41, s. 47

Subjects

sale proclamationexecution of decreeirregularitiesRule 90Section 47civil procedureattachmentvoid sale vs irregularity

Judgment

Goo
A S. A. SUNDARARAJAN
•
v.
A. P. V. RAJENDRAN
January 13, 1981

B· [R. $. SARKARIA AND R. S. PATHAK, JJ.]

Code of Civil Procedure-Order XX!, rule 90-And section 41-Irr£gula-
rities in settling sale proclamation--Section 41, if attracted.

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
c attached persuant 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 pro-
clamation 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 XXl and not under section
D 47 of the Code.

Dismissing the appeal
HELD : The application for setting aside the sale on tho grounds taken
by the appellant is referable to rule 90 of Order XX! and, therefore, not to
section 47. [603F]
E
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 XXL £603BJ

The errors complained of by the appellant amounted to mere irregularities
comn1itted in settling the sale proclamation: and could not be described as
F
e11rors which render the sale void. [602D]

The requirements which were not complied with when settling the sale pro--
clamation were intended for the benefit of the appellant who could waive them.
1"hey 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 y,.·as involved. They were mere irregularities which fell within the
G scope of rule 90 of Order XX! 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.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 124 of
H 1981.
Appeal by StPecial Leave from the Judgment and Order dated
14-6-1979 of th~ Madras High Court in AAO No. 386/75.
s. A. SUNDARARAJAN v. A. P. v. RAJENDRAN (Pathak, J.) 60 I

' M. Natesan, K. Ramkumar and Mrs. J. Ramachandran for the A
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 B
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
•i Procedure.
~ A civil suit by the respondent against the appellant was decreed
in 1971. The attachment of the appellant's property before judgment
c
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. 40,0001- to the respondent. Lot No. 2 was not sold D
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
r 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 E
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 apjpellant and that there were other omissions in the sale pro-
clamation 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 F
from Rs. 80,000/- to Rs. 40,0001- 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 G
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 H
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 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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
B by the High Court and, in the circumstances, the appeal against the
order setting aside the sale was taken as the main aruieal. The princi-
pal qnestion 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
c setting aside the sale lay under rule 90 of Order XXI and not under
s. 47, and therefore remitted the appeals to the executing CQurt 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
D 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
irregnlar 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
E case when settling the sale proclamatio'n 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 irregnlarities. Consequently, they
F fall within the scope of rule 90 of Order XXI.

It may be pointed ont that when rnle 90 of Order XXI employs
the expression "in publishing or conducting the sale", it envisa~
the proceeding commencing after the order for sale made under
rule 64 of Order XXL The provisions after rule 64 are provisions
relating to publishing and conducting the sale. Settling the proc' a-
G
mation of sale is part of the proceedings for publishing the sale.
Role 65 of Order XXI declares that e¥ery 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
H manner in which the sale is made. Rule 66 of Order XXI is the first
step in th~t behalf. It provides for a proclamation of sale. When
(l) [1964) 6 S.C.R. 1001.
s. A. SUNDARARAJAN v. A. P. v. RAJENDRAN (Pathak,!.) 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 XXL 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 irre-
B·
gularities which fa]] within the amplitude of rule 90 of Order XXL
It may be observed that in Dhirendra Nath Gurai'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 c
rule 90 of Order XXL
Our attention has been invited by the appellant to the Madras
amendment made in 1952 in rule 66 of Order XXI whereby 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 con-
cerned. It is urged that an opportunity has been provided under the
substituted provision to a judgment-debtor to participate in the draw-
ing 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 i'n 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 parti-
cipate 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 applicatio'n for setting aside the sab on the grounds F
taken by the appellant is referable to rule 90 of Order XXI, and,

. ,.,
I
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.
G
The appeal fails and is dismissed, but there is no order as to
costs.

P.B.R. Appeal dismissed.