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Venkateswara Ettu Naicker v. Ayyammal And Others
Judgment Summary
Factual and Procedural Background
This appeal arises from execution proceedings under a mortgage decree in O.S. No. 186 of 1939. The properties of defendants 1 and 2 were brought to sale in execution. A sale was held on 15 September 1943 and confirmed on 18 October 1943; respondent 1 was the auction purchaser. On 24 February 1944 defendant 2 (the present appellant) filed an application under Section 47 and Order 21, Rule 90 of the Code of Civil Procedure, seeking to set aside the sale on three grounds: (1) no service of notice on him at any stage of execution; (2) absence of publication of the sale proclamation in the village as required by Order 21, Rule 67; and (3) gross undervaluation and fraudulent suppression of material facts resulting in substantial injury (the property sold for Rs. 269).
The District Munsif of Koilpatti (original forum) allowed the application, holding the sale vitiated by fraud and irregularity, including absence of proclamation and gross undervaluation, and set aside the sale. On appeal the Subordinate Judge of Tuticorin remanded for findings on certain matters. That remand order was itself the subject of C.M.A. No. 694 of 1945 before this Court, which directed a further remand to the Subordinate Judge to find specifically on proclamation, absence of notice and undervaluation. The Subordinate Judge thereafter (without taking further evidence) recorded findings that: notice was not personally served but the appellant had likely been informed by his father (defendant 1); there was no due proclamation; valuation fixed by the Court was not grossly inadequate and the appellant had not suffered substantial injury; and that the petition was barred by limitation. The Subordinate Judge allowed the appeal against the order setting aside the sale. This C.M.S.A challenges that order allowing the appeal.
Legal Issues Presented
- Whether a sale conducted in execution proceedings without a proclamation made as required by Order 21, Rule 66 (read with Rule 67 and Rule 54(2)) of the CPC is void (illegal) or merely irregular and therefore amenable to being set aside only on proof of substantial loss under Order 21, Rule 90.
- Whether the applicant's delay in moving under the provision relied upon is barred by limitation (i.e., whether Article 166 of the Limitation Act applies if the application is under Order 21, Rule 90, or whether Article 181 applies if the sale is held to be illegal and void).
- Whether, if a sale is set aside, it may be set aside only as to the applicant's share (defendant 2) or must be set aside in its entirety where the sale itself is declared void.
Arguments of the Parties
Appellant's Arguments (counsel: Mr. Ramaswami Iyer)
- Both lower courts found there was no proclamation of sale in the village; a sale held without the mandatory proclamation required by Order 21, Rule 66 is void and illegal, not merely irregular.
- The application was filed under Section 47; because the proclamation is a pre-sale mandatory requirement, the challenge must be treated as one under Section 47 rather than under Order 21, Rule 90.
- Evidence of proclamation (affidavit Ex. D8 and testimony of the process-server R.W.2) was not accepted by the lower courts: attestors and the person alleged to have beaten the tomtom (the totti) were not examined and the Subordinate Judge characterized the attempted proof as a farce; therefore no valid proclamation was made.
- Because the proclamation requirement is mandatory, the total failure to make it renders the sale illegal and void and should be set aside in entirety.
Respondent's Arguments (counsel: Mr. Subramania Pillai)
- Relied upon Subbanna v. Satyanarayana Murthi (1943) where a sale without a fresh proclamation was held not necessarily illegal and could be set aside only if substantial loss was shown; thus absence of a fresh proclamation after adjournments was treated as irregular in that case.
- Argued that if the sale is set aside it could be set aside only as regards the share of the applicant (defendant 2) and not in respect of defendant 1's share, because defendant 1 did not apply to set aside the sale.
- Raised limitation objection: if the remedy is under Order 21, Rule 90, Article 166 of the Limitation Act (30 days from date of sale) would apply.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jayarama Iyer v. Vridhagiri Aiyar, 44 Mad. 35; A.I.R. 1921 Mad. 583 | Held that absence of proclamation of sale in the village (or publication in the manner prescribed) renders the sale illegal and a nullity, not merely an irregularity within O.21, R.90. | The Court applied this authority directly: because both lower courts found no proclamation, Jayarama Iyer was held to control and supports the conclusion that the sale of 15 September 1943 is illegal and void. |
| Subbanna v. Satyanarayana Murthi, 1943-2 M.L.J. 295; A.I.R. 1943 Mad. 739 | Held that where there was a proper initial proclamation and the only attack was absence of a fresh proclamation after adjournments, the sale was not necessarily illegal; it would be set aside only on proof of substantial loss (treated as irregularity). | The Court distinguished Subbanna on the facts: there was no proper proclamation at all in the present case, whereas Subbanna involved an initial proper proclamation and waivers/adjournments. Consequently Subbanna did not prevent declaring the sale void here. |
| Nripathi Nath v. Jatindra Kumar, A.I.R. 1926 Cal. 577 (91 I.C. 407) | Authority cited as having a similar effect to Subbanna regarding treatment of certain proclamation irregularities as not automatically rendering a sale nullity. | The Court treated this decision as supportive of the principle that some proclamation-related defects may be irregularities; but distinguished it on the facts and held it did not control where there was a total failure to make the mandatory proclamation under R.66. |
Court's Reasoning and Analysis
The Court proceeded from accepted findings of fact in the lower courts: the sale proclamation required to be made in the village was not made in accordance with the modes prescribed (the evidence offered by the decree-holder — process-server R.W.2 and affidavit Ex. D8 — was rejected because attestors and the alleged dram-beater (totti) were not produced and the Subordinate Judge characterised the attempt as a sham). The Court therefore accepted that there was no due proclamation as required by Order 21, Rule 66 read with Rule 67 and Rule 54(2) (the procedure prescribing proclamation by customary mode).
The Court examined whether the absence of the mandatory proclamation rendered the sale void or merely irregular. It relied on the bench decision in Jayarama Iyer v. Vridhagiri Aiyar which holds that where the specific provision for proclamation (O.21, R.66) is violated, the sale is illegal and a nullity and not merely an irregularity under O.21, R.90. The Court analysed and distinguished decisions (notably Subbanna v. Satyanarayana Murthi and Nripathi Nath v. Jatindra Kumar) which treated lack of a fresh proclamation following adjournments as an irregularity amenable to being set aside only on proof of substantial loss. The critical distinction identified by the Court is that Subbanna involved an initial proper proclamation and subsequent adjournments/waiver of a fresh proclamation; R.69 allows waiver of a fresh proclamation in some circumstances, but R.66 requires the Court to cause a proclamation to be made and is not susceptible to waiver by the judgment-debtor. Therefore the failure to make the R.66 proclamation is a substantial violation.
On limitation, the Court reasoned that if the application were governed as an irregularity under O.21, R.90, Article 166 of the Limitation Act (30 days) would apply. But because the Court concluded the sale was illegal and void for total failure of proclamation, Article 166 is inapplicable; instead residuary Article 181 (three years from accrual of right) governs and the application is within time.
The Court also addressed the contention that any setting aside should be limited to the applicant's share. It held that where the sale itself is declared void for illegality, it cannot be severed as to different co-defendants' shares and must be set aside in its entirety.
Holding and Implications
Holding:
The appeal is allowed. The sale held on 15 September 1943 is declared illegal and void and is set aside; the order of the trial Court (which set aside the sale) is restored.
Implications and consequences:
- The sale is void in its entirety (not merely as to the applicant's share) because of total failure to make the mandatory proclamation under Order 21, Rule 66.
- The Court applied the precedent in Jayarama Iyer v. Vridhagiri Aiyar to hold that failure to make the mandatory proclamation is a substantial violation rendering the sale null and void.
- Because the sale is declared void, the limitation provision applicable is residuary Article 181 (three years) rather than Article 166 (30 days under O.21, R.90); the application was therefore within time.
- No costs were ordered in the appeal or in the lower appellate Court; leave refused.
- The decision rests on the facts as found (total failure of proclamation and rejected evidence of attempted proclamation) and does not purport to create or state any broader novel precedent beyond applying the cited authorities.
This summary is prepared exclusively from the provided opinion text and does not add or infer facts beyond that text.
JUDGMENT
1. This is an appeal against the order of the Subordinate Judge of Tuticorin in C.M.A No. 8 of 1945 allowing the appeal against the order of the District Munsif of Koilpatti in E.A No. 233 of 1944 in O.S no. 186 of 1939. The appellant is defendant 2, defendant 1 being the father. In execution of a mortgage decree in O.S No. 186 of 1939 the properties of defendants 1 and 2 were brought for sale. Sale was held on 15th September 1943, respondent 1 here being the auction purchaser. The sale was confirmed on 18th October 1943. On 24th February 1944 the appellant filed an application under S. 47 and O. 21, R. 90 of the CPC, for setting aside the sale held on 15th September 1943. The grounds which he urged for setting aside the sale were (1) that there was no service of notice on him at any stage of the execution, (2) that there was no publication of the sale proclamation in the village as required by O. 21, R. 67 of the CPC, and (3) that the properties were grossly under-valued by the decree-holder by suppression of material facts and fraudulent representations and that she managed to get a very low upset price fixed for the properties and that as a result of the undervaluation and fraud the petitioner has sustained substantial injury, in that the properties worth several thousands have been sold for an inadequate and low price of Rs. 269. The learned District Munsif who heard the application held that the sale was vitiated by fraud and irregularity, that there was no proclamation of the sale in the village and that the properties were grossly under-valued and therefore allowed the application and set aside the sale. On appeal the learned Subordinate Judge remanded the application for finding on certain matters. That order of remand was taken up in appeal to this Court in C.M.A No. 694 of 1945 and Chandrasekhara Aiyar, J. directed a further remand to the Subordinate Judge for a finding as to whether there was a proper proclamation or not and on the question of absence of notice and undervaluation. The learned Subordinate Judge did not take any further evidence, but on the material on record proceeded to record findings on the three points referred to him. The learned Subordinate Judge found that even though notice was not personally served upon the appellant, he must have been kept informed of the proceedings by his father who is defendant 1 in the case. As regards proclamation he held that there was no due proclamation. Regarding under-valuation he was of opinion that the valuation fixed by the Court was not grossly inadequate and observed that it followed from the findings that the appellant has not suffered substantial injury on account of the irregularity in the matter of publication. He also held that the petition was barred by limitation. The appeal against the order setting aside the sale was allowed. This C.M.S.A is against the said order.
2. Mr. Ramaswami Iyer, counsel for the appellant mainly contended that in view of the findings of both the Courts that there was no proclamation, the sale held in such circumstances is void and is illegal and this is not a case where in the publication and conduct of the sale there were material irregularities on which an application under O. 21, R. 90 could be made. He argued that the application was under S. 47 and the making of the proclamation being prior to the sale, the application must be deemed to be one under S. 47 and not under O. 21, R. 90 of the CPC. There are concurrent findings of fact of both the learned District Munsif and the Sub-ordinate Judge that there was no proclamation of sale. The learned District Munsil finds that there has been no publication of sale proclamation as required by O. 21, R. 67 read with R. 54(2), while the Subordinate Judge holds that after examining the evidence that there has been no due proclamation. In the affidavit of the process-server who is alleged to have made the proclamation, Ex. D 8, it is stated as follows:
“On 18th July 1943, 1 proclaimed by beat of tom tom the particulars of the sale by the Court of the properties mentioned in the proclamation of sale at the village of Ayya Kottayur where the property is situated and tied one of the two copies of the proclamation and raised it on a pole fixed in the garden No. 254 being Lot No. 1 of the property, paid Rs. 0-8-0 (eight annas) to the man who beat the drum, took his signature and took the signature of the people resident in the place at the end. On 29th July 1943 the other copy was affixed to the Court notice board and the signature of the process-server was obtained.”
The process-server was examined as R.W 2 and he deposed that he caused proclamation by tomtom by totti Suppan Pagadai and the proclamation was attested by three parsons Chinnaswami Nadar, M.A.N Kamal Patcha and S.V Chinnaswami Nadan. The totti who is admitted to be alive was not examined, nor any of the three attestors, and the evidence of R.W 2, the process-server, has not been accepted by both the lower Courts, and the learned Subordinate Judge observes that:
“The totti who is alleged to have beaten the tomtom is a fictitious person and the decree-holder made a farce of an attempt to summon him once or twice, but he made no real attempt to get at him and examine him in Court, and that the appellant had not examined any of the attestors to the attakshi to the sale proclamation.”
In the end he concludes that there has been no due proclamation of sale in the village. I am not inclined to disagree with these findings of fact by both the Courts that there has been no proclamation. But it is contended by Mr. Subramania Pillai that the learned Subordinate Judge only says that there has been no due proclamation. Apparently what he means is that there has been no proclamation in accordance with law. Under O. 21, R. 66 of the CPC, when any property is to be sold by public auction, the Court shall cause proclamation to be made in the language of such Court, and under R. 67 the proclamation shall be made and published as nearly as possible in the manner prescribed by R. 54(2). Rule 64(2) relates to attachment of properties and it directs that the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. The mode by which the process-server, R.W 2, is alleged to have made the proclamation has not been accepted by the Courts, and that being the only mode mentioned it is not brought to the notice of the Court that it was proclaimed by any other mode. If in fact it has been found that there has not been this publication by the mode prescribed by R. 54(2) and as alleged to have been made by R.W 2, the effect is that there has been no proclamation which is mandatory under R. 66 of O. 21.
3. It has, therefore, to be considered whether a sale held without a proclamation as required under O. 21, R. 66 could be said to be valid and not void. There is the Bench decision of this Court in Jayarama, Iyer v. Vridhagiri Aiyar, 44 Mad. 35 : (A.I.R (8) 1921 Mad. 583), where it was held that:
“Where a proclamation of sale of lands in execution of a decree as framed by the Court, was not published in the village where the lands were situate bot the process-server intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation, a sale held at the place and by the official fixed by the proclamation is illegal and a nullity and not merely ‘irregular’ within the meaning of O. 21, R. 90 of the CPC”
There is no difficulty in applying the proposition laid down in this case to the facts that arise in the present appeal, as there has been no proclamation at all in the village.
4. Mr. Subramania Pillai relied on a decision in Subbanna v. Satyanarayana Murthi, 1943-2 M.L.J 295 : (A.I.R (30) 1943 Mad. 739), where it was held that a sale without fresh proclamation was not illegal or invalid and could be set aside only if substantial loss is proved since it is only an irregularity. In that Case, in execution of a decree the sale of properties was fixed on 311st March 1941. On that day the judgment-debtors had the sale adjourned to 30th June and waived fresh proclamation. Meanwhile the original decree-holder died and steps had to be taken to bring the legal representative on record. The sale was adjourned to 7th July and again to 6th August when the sale was held. There was no fresh proclamation of sale. The case in Jayarama Iyer v. Vridhagiri Iyer, 44 Mad. 35 : (A.I.R (8) 1921 Mad. 583), was distinguished by the learned Judges in that case and the following observation appears to be material:
“If there was a proper proclamation to start with and only ground of attack is that the total period of adjournments exceeded the thirty days fixed in the Madras rule as amended in 1936 and that the sale was held without a fresh proclamation, it appears to us that the sale cannot be held to be an illegal one or a nullity and the sale will be set aside only if substantial loss is proved.”
But here there was no proper proclamation at all, and in that case there was a waiver of fresh proclamation at one stage and again it was adjourned and, in the meantime, the decree-holder died and the legal representatives was brought on record and for the adjourned sale there was no fresh proclamation. To similar effeot is the decision cited on behalf of the respondent, viz., Nripathi Nath v. Jatindra Kumar, A.I.R (18) 1926 Cal. 577 : (91 I.C 407). There is one distinction between the proclamation that has to be made under R. 66 and a fresh proclamation under R. 69 of O. 21. With reference to the proclamation that is to be made under R. 66 the Court shall cause the proclamation to be made, whereas under R. 69(2) if the judgment-debtor consents to waive it, there could be a sale without a fresh proclamation. No such latitude is given under R. 66. Even the consent by judgment-debtor could not waive a proclamation provided for under R. 66 which is obligatory. As pointed out by Seshagiri Aiyar, J. in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : (A.I.R (8) 1921 Mad. 583) it is no doubt not easy to draw the line between irregularity and illegality, but where a substantial provision of law has been violated as in this case O. 21. R. 66 the sale should be regarded as having been illegally conducted. The object of O. 21, R. 66 is to afford a security for the fairness of public sales, that it has been properly published and that it would attract purchasers. But if the specific provision as to proclamation is violated, there could be no doubt that the sale cannot be allowed to stand. It cannot be said that the total failure to make the proclamation under O. 21, R. 66 is a mere irregularity in the publication or conduct of the sale. In view of the decision in Jayarama Aiyar v. Vridhagiri Aiyar, 44 Mad. 35 : (A.I.R (8) 1921 Mad. 583) and on the findings of fact of both the Courts, the sale held on 15th September 1943 must be held to be illegal and void and cannot be allowed to stand and is, therefore, liable to be set aside.
5. A further point was argued on the question of limitation. It is conceded that if it is an application under O. 21, R. 90 the provisions of Art. 166. Limitation Act would apply i.e, an application should be filed within 30 days from the date of sale. But in the view that I am now taking that the sale itself is illegal and void, Art. 166 would have no application and residuary Art. 181 would be the provision that would be applicable to an application of this nature, i.e, three years from the time when the right to apply accrues. If Art. 181 is applied, the application is within time.
6. It is also argued by learned counsel for the respondent that the sale if at all is set aside could be set aside only as regards the share of the applicant and not in respect of the share of defendant 1 who has not preferred an application for setting aside the sale. But since the sale itself has been held to be an illegality I do not think that any such distinction could be made and the sale in its entirety must be deemed to be void and is, therefore, set aside. This point as to the void nature of the sale does not appear to have been argued in the lower Court and has been raised for the first time by Mr. Ramaswami Aiyar. But since it is a point of law I have allowed him to argue it.
7. In the circumstances of the case, the appeal is allowed and the order of the trial Court is restored, but there will be no order as to costs in this, appeal and in the lower appellate Court, Leave refused.
C.R.K/D.R
8. Appeal allowed.
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