1. This is an application for review of the judgment and decree in S. A. No. 1313 of 1949. It was heard and disposed of by me on 26-2-1953. I dismissed it on one short ground, namely, that the appellants were concluded by certain prior proceedings which eventually ended in C. M. S. A. No. 113 of 1943.
The material facts are as follows: The respondent filed a suit in the Court of the District Munsif of Nandyal to recover possession of land which originally belonged to one Venkatasubbiah, the father of the defendants, who are the appellants in the second appeal. It was sold in execution of the decree in b. section no. 13 of 1935 on the file of the same Court and purchased by one R. Chlnnaramiah on 4-6-1941 in court auction.
Chinnaramiah sold the property to the plaintiff respondent.
The suit was brought on the allegation that the plaintiff was put in possession by the court auction purchaser, but the defendants subsequently dispossessed the plaintiff and took possession of the land forcibly. The main plea in defence was that the court sale held on 4-6-1941 was illegal and void because there was no publication of the proclamation relating to the sale. It was further stated that the court auction purchaser was only a benamidar of the plaintiff who was in effect the decree-holder as he had attached the decree in O. S. No. 13 of 1935 in execution of the decree which he had obtained in O. S. No. 367 of 1936 on the file of the same Court against the decree-holder in O. S. No. 13 of 1935. The defendants alleged that the suit lands which were sold for Rs. 220 were worth not less than Rs. 2000 on the date of the court sale.
The judgment-debtor in o. section no. 13 of 1935, the father of the appellants, filed E. A. No. 956 of 1941 under Order 21, Rule 90 and Section 47, C. P. C. to set aside the sale. This application was dismissed by the District Munsif on the ground that it was filed after thirty days after the sale. An appeal was filed to the District Court of Kurnool, but it was dismissed. A second appeal (C. M. S. A. No. 113 of 1943) was then filed in this Court. That was also dismissed on 13-7-1943 by Kuppuswami Aiyar J. on the ground that no second appeal lay, because the application must be treated as one filed under Order 21, Rule 72 or Rule 90 and not under section 47 of the code. The sons of the judgment-debtor, who had died meanwhile, three of the present appellants filed an application for review of the judgment passed in the C. M. S. A. The learned Judge dismissed the application, and in doing so, observed as follows:
"I have definitely pointed out in my order sought to be reviewed that the two grounds on which the sale was attacked, namely, that there was no proclamation and that the purchase was benami for the decree-holder are grounds which would attract
Order 21, Rule 90 and Order 21, Rule 72 and dismissed the appeal on the ground that no second appeal lies against orders passed on a petition filed under these provisions."
The plaintiff respondent relied upon the above proceedings as a bar to the present suit.
2. The District Munsif held that there was no proclamation of the sale as required by Order 21, Rules 66-69 of the Code and that therefore the defendants were not debarred from questioning the validity of the court sale because of the prior proceeding ending in -- 'C. M. S. A. No. 113 of 1943. On these findings, he dismissed the suit. On appeal, the learned Subordinate Judge reversed this decision and decreed the plaintiff's suit. He agreed with the District Munsif, indeed, it was not disputed that the sale proclamation was not effected before the sale took place. But he held that the sale on that ground was not a nullity and that non-compliance with Rules 66 to 69 of Order 21 of the Code would only amount to material irregularity which could be urged only under an application filed under Order 21, Rule 90 of the Code and not by means of a separate suit. He was, however, of the opinion that the decision in --'C. M. S. A. No. 133 of 1943 did not operate as res judicata. The defendants thereupon filed the above second appeal.
3. I took the view that the appellants were concluded by the previous proceedings which culminated in C. M. S. A. No. 113 of 1943. I relied on the observations made by Kuppuswami Aiyar J. in dismissing the application to review the judgment in the 'C. M. S. A.' that the objection that there was no valid proclamation of the sale was one falling within Order 21, Rule 90. I said:
"The appellant had raised this point in such an application. But unfortunately that application was dismissed as out of time. It will not therefore be open now to the appellant to rely on what I think is a very good point, namely, that the sale held without proclamation is illegal."
In this present application for review of this judgment of mine, it is pointed out that the question of legality of the sale for want of proclamation was not decided on the merits in the prior proce(sic)ings in as the application was dismissed as being out of time, and therefore the dismissal of the prior application would not operate as a bar to the appellant's raising the question of the invalidity of the sale in the present suit.
A decision of a Bench of this Court in -- 'China Dandsi v. P. Tatiah', AIR 1921 Mad 279 (A), was cited by the learned Counsel for the petitioner as directly applying to the facts of this case. In that case, the plaintiff purchased certain lands in a court sale upon a mortgage decree. Alleging that he had obtained delivery of the property through Court and that he was dispossessed later by the defendant, the suit was to recover possession from the defendant who was no other than the mortgagor. The defence was that the properties sought to be recovered were not included in the mortgage suit or decree but had been fraudulently inserted in the sale certificate. Both the courts below dismissed the suit on the ground that the sale was invalid.
In second appeal it was contended that the defendant was debarred by 'res judicata' from questioning the correctness of the sale & also that he was debarred under section 47 of the code from raising a question relating to execution in a suit. The defendant had before the suit tried to have the sale set aside first by an application under Order 21, Rule 89 and subsequently by an application under Order 21, Rule 90. The latter application was dismissed on the ground that the application was too late. The contention raised on behalf of the plaintiff appellant and the way in which the contention was repelled appears from the following extract from the judgment of Spencer J.:
"The appellant's pleader urged that the defendant having once applied to have the sale set aside and having failed was bound by 'res judicata' from raising the contention that the sale was invalid even though his application was dismissed upon the ground that he was out of time without a determination of the question relating to the validity of the sale. He has however failed to show us how this case comes within the rule of 'res judicata' as defined in Section 11, C. P. C. It is quite clear that there was no adjudication upon the substantial question raised in the defendant's petition as to the validity of the sale and therefore it cannot be deemed to have been a matter directly and substantially in issue in any prior proceedings"
4. Clearly, this ruling applies to the present case. Here too, the prior application of the appellants was dismissed as being too late. There was no adjudication upon the substantial question raised by them as to the validity of the sale. That question was never heard and disposed of finally. The decision is also authority for the position that a plea as to the invalidity of a sale could be put forward as a defence to a suit for possession by the auction purchaser. Mr. T. R. Srinivasan, learned counsel for the respondent, was unable to distinguish this case, nor could he say that the principle of this decision was dissented from in the subsequent decisions. I must confess that I entirely overlooked this aspect when I disposed of the second appeal on the sole ground that the defendants were precluded from putting forward the plea that the sale was invalid by reason of the prior proceedings which ended with the order of Kuppuswami Aiyar J. in -- 'C. M. S. A. No. 113 of 1943'. In my view, the petitioners have made out a case for reviewing my judgment. I therefore intimated to counsel that I would hear arguments on the other points raised in the case.
5. The substantial question which emerges at the outset is whether a court sale held without any publication whatever of the proclamation, of sale is void or only voidable at the instance of the judgment-debtor or other aggrieved party and that only by an application under Order 21, Rule 90 of the Code. In dealing with the authorities cited before me on both sides, one has to keep the distinction between a case where there has been a publication of the proclamation but the publication has been found to be defective in certain particulars and a case in which there has been no publication at all.
A case of this Court in which there was no proclamation at all is that covered by the decision in -- 'Venkateswara Ettu Naicker v. Ayyammal', (B). There, Krishnaswami Nayudu J. after accepting the finding of the Court below that there was no proclamation at all held that the sale held without proclamation was void. The learned Judge observed;
"It cannot be said that the total failure to make the proclamation under
Order 21, Rule 66 is a mere irregularity in the publication or conduct of the sale."
He relied upon the decision of a Bench of this court in -- 'Jayarama Aiyar v. Vridhagiri Aiyar', AIR 1921 Mad 583 (C). That was not a case where the proclamation of sale was not published at all. It was published but not in the village where the lands were situate. But the process server had intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation. It was held that the sale was illegal and a nullity and not merely "irregular" within the meaning of Order 21 Rule 90 of the Code.
Oldfield J. after pointing out that no general rule for distinguishing between an irregularity and an illegality had ever been laid down, observed that on the facts of the case the result was as if the property had never been sold under the Code at all. The decision in -- 'Bashartulla v. Umachurn Dutt', 16 Cal 794 (D) was expressly approved. There, where the property that had been advertised for a particular date was sold on that date but at an earlier hour than that stated in the proclamation, the Court held that there was no sale within the meaning of the Code. Seshagiri Aiyar J. was of the opinion that the Code itself gave some indication as to when a sale can be regarded as irregular and when illegal. He thought that on the language of Order 21, Rule 90, where there was no publication or conduct of the sale, the sale should be regarded as illegal. On the facts of the case before him, his conclusion was that in effect there had been no publication at all.
We are not now concerned with the correctness of the decision in so far as it held that on the facts of the case there had been no publication at all. The value of the decision, in my opinion, lies in the enunciation of the general principle that where there is no publication or conduct of the sale, then it is not a case of mere irregularity. It is as if a sale had not been held at all within the meaning of the Code. If there was no publication of the sale whatever, at any place or in any manner, taut some officer of the court chose to hold a sale at some places on some date, it cannot be said that there has been a material irregularity or fraud in publishing a sale.
Likewise it follows from this decision that if there is in effect no conducting of the sale it would not be a case of material irregularity in conducting it. Suppose the selling officer does not conduct an auction but merely takes a private offer and reports to the Court that the property has been sold to the person making that offer. Can it be said that there has been a conduct of the sale? I think not. Following the principle of this decision and the decision of Krishnaswami Nayudu J. in -- ' (B) and on the concurrent findings of the Courts below that there was no publication of the sale whatever, I hold that there has been no sale at all under the Code and the alleged sale was a nullity.
6. Mr. T. B. Srinivasan for the respondent relied strongly on the recent decision of a Bench of this Court to which I was a party in -- 'Vasudeva v. Mani Naicker', (E). At the outset, it must be borne in mind that that was not a case where there was no publication. There was a publication but the sale was held on a date different from that notified without an order of adjournment and without a further sale proclamation. One cannot also overlook the actual facts and circumstances of the case. The execution sale was fixed by the sale proclamation inadvertently for 24-1-1942. That date being a penultimate Saturday was a court holiday, and the sale was held on Monday the 26, Sunday also being holiday. It was held that the sale was not a nullity and there was only an irregularity in publishing and conducting the sale. It is clear that this decision does not directly govern the present case, where there has been no proclamation at all.
Venkatarama Aiyar J. who delivered the judgment of the Bench discussed the case-law relating to failure to observe one or other of the rules contained in Order 21 of the Code relating to sales in execution. The learned Judge pointed out that the trend of the decisions was clearly to establish that mere breaches of these rules would not render the sale void but they would only be material irregularities furnishing a ground for taking action under Order 21, Rule 90. He observed thus:
"The principle to be deduced from these authorities is that breaches of the provisions of the Civil Procedure Code relating to execution against immoveable properties commencing from their attachment down to their sale should all be dealt with under Order 21, Rule 90, and not otherwise and that the order of confirmation under
Order 21, Rule 92 should give the final quietus to all objections which could be raised under
Order 21 Rule 90."
Mr. Srinivasan particularly relied upon that part of the judgment of the learned Judge where dealing with the decision in -- 'AIR 1921 Mad 583 (C)'. he expressed the view that there was considerable ground for dissenting from the reasoning on which that decision was based. But the reasoning which he was referring to is that conditions as to time and place of the sale are fundamental and their violation would render the sale void. The learned Judge was not dealing with a case like the present where there had been no publication whatever of the proclamation of sale. Nowhere does he express his dissent from the observation of Seshagiri Aiyar J. to which I adverted earlier in the judgment, namely, that where there is no publication or conduct of the sale the sale should be regarded as illegal.
I have no reason to doubt the correctness of the ruling in -- ' (E)'. But it has no direct application to the facts of the present case. Reliance was placed by Mr. Srinivasan on the decisions in -- 'Harindranath v. Bola Nath Sahu', AIR 1937 All 407 (F)' and -- 'Sankaran v. Hasta Bahadur' AIR 1934 Bang 188 (G). In neither case is there any attempt to discuss the question whether an irregularity or defect in a sale proclamation and complete absence of publication stand on the same footing. They are therefore not of much assistance. Nor does the decision in --'Ashalata Bose v. Manindranath', AIR 1942 Cal 215 (H), carry the matter further.
7. Mr. Chalapathi Rao, learned Counsel for the petitioner, further contended that the sale was void as there was a breach of Order 21, Rule 72 of the Code. In my opinion, there is no substance in this contention. A contravention of that rule does not make the sale void. Vide -- 'Badha Krishna v. Bisheshar', AIR 1922 P. C. 336 (I).
8. In the view that I have taken that on the finding that there has been no publication whatever of the proclamation of sale, it must be held that there has been no valid sale under the Code, I allow the second appeal and set aside the decree of the lower appellate Court and restore the decree of the trial Court. The plaintiff will pay the costs of the defendants in the Courts below but there will be no order as to costs in the second appeal. (Leave granted).