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Case Number

Appeal No. 83 of 1932 from Order

Advocates

K.N Dharap, for the appellant.
W.B Pradhan, for respondents Nos. 1, 2, 8 and 10.
P.N Shende, for respondent No. 9.

Judges

Mr. N.J Wadia, J.

Acts

13 Page: 568also. Order XXI, rule 66, sub-clause (2),
Order XXI, rule 90, of the Civil Procedure Code,
section 60(c) of the Civil Procedure Code
Section 60(c) Page: 570relates

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Smart Summary

Judgment Summary — N.J. Wadia, J.

Factual and Procedural Background

This is an appeal against an order of the First Class Subordinate Judge of Thana refusing to set aside a sale in execution of three darkhasts (Nos. 366 of 1924, 447 of 1924 and 271 of 1925) filed by respondents Nos. 1 to 8 against the appellant and respondent No. 11, Balkisandas Tulsidas. A large body of property was to be sold: most lots (Nos. 1, 2, 4–12 and 14) were sold in 1929, while the remaining lots (Nos. 3 and 13) were sold on December 31, 1931 — the subject of this appeal.

The appellant sought to set aside the sale on multiple grounds: (a) the proclamation of sale erroneously recorded a charge of about Rs. 31,035 as subsisting on the whole of lots Nos. 3 and 13 when, in fact, the charge subsisted only on respondent No. 11's property (the whole of lot No. 3 and one half of lot No. 13); (b) at the time of the sale there was allegedly no subsisting attachment over respondent No. 11's property; (c) the sale was closed by the Mahalkari earlier than 5 p.m. despite the proclamation stating the sale would be between 11 a.m. and 5 p.m., causing alleged prejudice to bidders; and (d) the house sold (part of lot No. 13) was not liable to attachment because the appellant claimed to be an agriculturist occupying it.

The Subordinate Judge refused to set aside the sale. The appellant appealed to the Court presided over by N.J. Wadia, J., which delivered the opinion summarized here.

Legal Issues Presented

Whether the appellant, as a person whose interests are affected by a sale under Order XXI, rule 90, can challenge the sale of the whole property (including the share belonging to another judgment-debtor) on the ground that the proclamation wrongly described a charge as subsisting on the entire property.
Whether the appellant is estopped from challenging the sale because he was aware of the defect in the proclamation prior to the sale and failed to seek correction when he had notice.
Whether the house (half of lot No. 13) was immune from attachment under section 60(c) of the Civil Procedure Code on the ground that it was occupied by an agriculturist.
Whether the sale of property (respondent No. 11's share) without a subsisting attachment at the time of sale vitiates the sale.
Whether holding and closing the sale earlier than the terminal hour stated in the proclamation (i.e., before 5 p.m.) is a material irregularity sufficient to set aside the sale.

Arguments of the Parties

Appellant's Arguments

The proclamation of sale wrongly indicated a charge of about Rs. 31,035 on the whole of lots Nos. 3 and 13, when the charge in fact subsisted only on Balkisandas' property (whole of lot No. 3 and half of lot No. 13).
At the time of the December 31, 1931 sale there was no subsisting attachment on respondent No. 11's property (Balkisandas), so the sale was invalid.
The sale was closed before the stated terminal hour (the proclamation stated 11 a.m.–5 p.m.), and this early closing prevented certain bidders who could have offered higher prices from participating, causing substantial injury.
The house sold (half of lot No. 13) was occupied by the appellant, an agriculturist, and therefore was not liable to attachment under section 60(c) of the Civil Procedure Code.

Respondents' Arguments

The application by the appellant to set aside the sale, even if successful, could only affect the appellant's own share (half of lot No. 13) and not respondent No. 11's share (whole of lot No. 3 and the other half of lot No. 13).
Order XXI, rule 90 permits any person whose interests are affected by a sale to apply to set it aside; respondents contended appellant was not entitled to unsettle other co-debtors' shares by his challenge — though the Court found otherwise on the standing point.
The Subordinate Judge took the view (relied on by respondents) that the appellant was aware of the defect in the proclamation long before the sale and failed to act, making him estopped from later objecting to the sale.
With respect to attachment and other procedural objections, respondents argued that even if attachment were absent or some procedural irregularity occurred, those are irregularities that do not automatically nullify the sale unless substantial injury is shown.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Behari Singh v. Mukat Singh (1905) 28 All. 273	Where judgment-debtors had notice of inquiries/descriptions and neglected to supply information or object, they cannot later set aside sale on such grounds (estoppel for failing to object).	Used to support the principle that a judgment-debtor who knew of defects in the proclamation and did not timely object cannot subsequently have the sale set aside on that ground; the court applied this to find the appellant estopped.
Arunachellam v. Arunachellam (1888) 12 Mad. 19 (P.C.)	A sale is not invalid solely because of insufficiency of description when the judgment-debtor was aware of the description and allowed the sale to proceed without objection.	Relied upon to reinforce the estoppel principle: the Court quoted the Privy Council reasoning that a judgment-debtor who knows the description cannot lie by and later vitiate proceedings for misdescription alone.
Mohan Lal… (Judgment-Debtor) v. Kali Charan… (Decree-Holder) (1927) 49 All. 788	Authority to the same effect as Behari Singh and Arunachellam regarding objection after knowledge of defect.	Referred to by the Subordinate Judge and accepted by the Court as supporting the conclusion that the appellant, being aware of the defect and not acting, could not now object.
Sorabji Coovarji v. Kala Raghunath (1911) 36 Bom. 156	Held by this High Court that where there is no attachment, there can be no order as to the sale of the properties (a stricter view on attachment requirement).	Discussed as part of contrasting authorities on effect of absence of attachment; the Court noted this decision but treated the broader body of authority as supporting the view that absence of attachment is generally an irregularity rather than a nullity unless substantial injury results.
Subramania Aiyar v. Krishna Aiyar (1926) 61 Mad. L.J. 172	Madras High Court's view that sale without previous attachment is not void ab initio; absence of attachment is irregularity and sale is set aside only if substantial injury is shown.	Adopted as supporting the majority approach; the Court endorsed this principle and applied it to hold that absence of attachment alone, without proof of substantial injury, does not warrant setting aside the sale.
Kishory Mohun Roy v. Mahomed Mujaffar Hossein (1890) 18 Cal. 188	After confirmation and grant of sale-certificate, the sale is not to be considered a nullity merely because of the absence of attachment.	Referred to as further authority for treating absence of attachment as an irregularity not automatically voiding a completed and confirmed sale.
Raja Wazir Narain Singh v. Bhikhari Ram (1922) 2 Pat. 207	Considered prior decisions and held that omission to attach before sale does not make execution sale void; absence of attachment is a material irregularity which will vitiate sale only if substantial injury is shown.	Cited to support the Court's endorsement of the majority view that absence of attachment is not per se fatal to a sale; applied to reject the appellant's attachment-based challenge in absence of proof of substantial injury.
Basharutulla v. Uma Churn Dutt (1889) 16 Cal. 794	Example of a sale held earlier than the time stated in the proclamation (an hour earlier) — cited in the context of what constitutes a material irregularity as to time.	Distinguished: the Court held this precedent inapplicable because, in the present case, the sale occurred within the hours stated in the proclamation and therefore was not the same kind of irregularity.
Babu Ram (Judgment-Debtor) v. Iman-Ullah (Decree-Holder) (1926) 49 All. 402	Held that adjourning sale to another day without clearly announcing the hour in the proclamation is a material irregularity; the hour is of considerable importance.	Distinguished on facts: the present proclamation specified hours (11 a.m.–5 p.m.), the sale occurred within those hours, and thus the Court did not treat the early closing as a material irregularity warranting setting aside the sale.

Court's Reasoning and Analysis

Standing and scope of challenge: The Court began by addressing whether the appellant could challenge the sale of the whole property (including shares of another judgment-debtor). Citing Order XXI, rule 90 of the Civil Procedure Code, the Court concluded the appellant is a "person whose interests are affected by the sale" and therefore has locus to challenge the sale. The Court observed that although the judgment-creditor could have sold only the appellant's share, a wrong sale of the co-debtor's share for a lower amount could increase the burden on the appellant's share; hence the appellant could challenge the sale of the whole property.

Estoppel for failure to object to defective proclamation: The Subordinate Judge had held the appellant estopped from raising the misdescription objection because he had been aware of the defect long prior to the sale and did not seek correction when it was his duty to do so. The High Court agreed. The Court noted that the erroneous showing of the charge as subsisting on the whole property first appeared at an earlier sale by the Collector, and three proclamations concerning the present property (dated May 22, 1931; June 24, 1931; and September 1931) all showed the charge wrongly. Under Order XXI, rule 66(2), the Court must give notice of the intended sale to the decree-holder and judgment-debtor; the judgment-debtor had a duty to draw the error to the Court's attention upon receiving such notice. The Court relied on established authorities holding that a judgment-debtor who had notice of defects in the proclamation and failed to act cannot later object to set aside the sale on those grounds.

Whether creditors caused or noticed the error: The Court observed it was not shown that the incorrect description resulted from any representation by the creditors; the Collector first made the erroneous mention. It was possible the judgment-creditors had not noticed the error. Even if they had noticed it and did nothing, that would not justify the appellant — who had notice — in seeking to set the sale aside; authorities cited supported denying relief to a judgment-debtor who was aware and inactive.

Section 60(c) (agriculturist's house) objection: The Court addressed the appellant's contention that the house was in his occupation as an agriculturist and thus not attachable under section 60(c) of the Civil Procedure Code. The Court reasoned this was an objection that should have been raised before the sale; having not raised it, the appellant cannot do so now. Moreover, the Court found no evidence that the house (lot No. 13) was actually in the appellant's occupation; section 60(c) applies only to a house in the actual occupation of an agriculturist.

Attachment at time of sale: The Court examined the complex history affecting respondent No. 11's (Balkisandas') share. A creditor obtained an ex parte order of adjudication of insolvency against Balkisandas; the Official Assignee got his estate and freed his property from attachment; the attachment was actually raised on December 19, 1927. The ex parte order was later annulled. The Subordinate Judge treated the annulment as vesting the property back in Balkisandas and as automatically reviving the prior attachment. The High Court expressed doubts about the correctness of that automatic-revival view, especially given that the attachment had been expressly raised by the Court. Nevertheless, the High Court held that even assuming there had been no attachment at the sale date, that fact alone was insufficient to set aside the sale. The Court reviewed conflicting authorities and accepted the majority position that absence of attachment prior to sale is a material irregularity, not a nullity; the sale will be set aside only if the judgment-debtor sustains substantial injury from that irregularity. Since it was admitted that no substantial injury was shown, the absence (if any) of attachment could not invalidate the sale.

Alleged irregularity as to time of sale: The appellant alleged the sale closed at 1:30 p.m., thereby preventing willing bidders from participating. The Mahalkari's statement indicated the sale commenced at 12 noon and completed at 3 p.m., and no higher bidder came forward. The Court distinguished the authorities cited by the appellant (one where sale occurred an hour earlier than the proclamation time; another where sale was adjourned without the hour being announced) and found them inapplicable. Here, the proclamation specified hours (11 a.m.–5 p.m.), and the sale occurred within those hours. The Court held it was not reasonable to require that a sale necessarily remain open until the terminal hour if it could be concluded earlier due to lack of further bids; intending bidders had the duty to attend. Therefore the earlier closing was not a material irregularity sufficient to set aside the sale.

Conclusion of analysis: The Court found no sufficient cause to set aside the sale on any of the appellant's grounds — misdescription (estoppel), section 60(c) occupation, absence of attachment, or alleged improper timing of the sale.

Holding and Implications

Holding: The appeal is dismissed and the order of the First Class Subordinate Judge of Thana refusing to set aside the sale is confirmed. The judgment concludes with an award of costs: "There will be only one set of costs."

Implications and consequences:

The direct effect on the parties: the execution-sale of lots Nos. 3 and 13 stands; the appellant's application to set aside that sale is refused and the lower court order is upheld.
The Court applied established principles (estoppel for failure to object to defects in proclamation; treatment of absence of attachment as a material irregularity rather than a nullity) and confirmed that, absent proof of substantial injury, procedural irregularities such as lack of prior attachment or earlier closing within the proclamation hours do not invalidate an execution sale.
The opinion does not purport to lay down a novel legal principle; it applies and reconciles earlier authorities to the facts before the Court and adopts the majority view on attachment irregularity.

Disposition: Appeal dismissed. (Order of the Subordinate Judge affirmed; one set of costs.)

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Sakharlal Jamnadas v. Jerbai Sorabji Patel

N.J Wadia, J.:—

This is appeal against an order of the First Class Subordinate Judge of Thana refusing to set aside a sale of certain property held in execution of three darkhasts, Nos. 366 of 1924, 447 of 1924 and 271 of 1925, which had been filed by respondents Nos. 1 to 8 against the appellant and respondent No. 11, Balkisandas Tulsidas. A considerable amount of property was to be sold. The bulk of it, consisting of lots Nos. 1, 2, 4 to 12 and 14, was sold in the year 1929. The remaining lots Nos. 3 and 13, with which this appeal is concerned, were sold on December 31, 1931. The appellant sought to have the sale set aside on various grounds. His first contention was that the proclamation of sale with regard to the properties wrongly mentioned that there was a charge of Rs. 31,035 odd on the whole of lots Nos. 3 and 13, whereas as a matter of fact this charge really subsisted only on the property of respondent No. 11 Balkisandas, i.e, the whole of lot No. 3 and half of lot No. 13, lot No. 13 consisting of a house, half of which belongs to the appellant and half to Balkisandas. He also alleged that at the time of the sale there was no subsisting attachment on the property, and that the closing of the sale by the Mahalkari before 5 p.m, when, according to the proclamation, the sale was to be held between the hours of 11 a.m and 5 p.m, was a serious irregularity which caused substantial injury to the appellant. It was further alleged that the house which was sold was not liable to attachment because it was occupied by the appellant who was an agriculturist.

It has been contended on behalf of the respondents that the application to set aside the sale, even if allowed, could aftect only the appellant's share of the property (i.e, half of lot No. 13) and could not affect the other half of lot No. 13 and the whole of lot No. 3 with which he is not concerned. Order XXI, rule 90, of the Civil Procedure Code, allows any one, whose interests are affected by the sale, to apply Page: 567to the Court to set aside the sale on certain grounds. It seems to me that the appellant comes within the meaning of the term “person whose interests are affected by the sale”. It is true that as he and Balkisandas were joint debtors under the decree, the judgment-creditor could have sold the share of the appellant alone without selling the share of respondent No. 11 to recover his dues. But there is no question that if the share of respondent No. 11 is wrongly sold for a lower amount, the burden on the appellant's share of the property would to that extent be increased. In my opinion, therefore, the appellant can challenge the sale of the whole property including lot No. 3 and respondent No. 11's share of lot No. 13.

The lower Court has held that the appellant is estopped from raising the contention with regard to the improper description of the property in the proclamation of sale because he had been aware of the defect in the proclamation long prior to the sale, and took no steps to get the error corrected, when it was his duty to have done so. It seems to me that the view taken by the lower Court is correct.

It is admitted that the charge of Rs. 31,035 odd was on the property of Balkisandas alone and that the proclamation of sale wrongly shows the charge as subsisting on the whole of lots Nos. 3 and 13 including the share of the appellant. It has not, however, been shown that the wrong description of the property in the proclamation was due to any representation made by the creditors. It appears that the mention of this charge as subsisting against the whole property was first made at the time of the sale of some of the other properties of the judgment-debtors on December 5, 1929, by the Collector. Prior to the sale of the property now in appeal, three proclamations relating to it had been issued: one on May 22, 1931, another on June 24, 1931, and a third in September 1931. In these proclamations the charge was wrongly shown against the appellant's share of lot No. 13 Page: 568also. Order XXI, rule 66, sub-clause (2), provides that a Court, before drawing up a proclamation of the intended sale of property, shall give notice of it to the decree-holder and to the judgment-debtor. It was the duty of the appellant judgment-debtor to bring to the notice of the Court the error with regard to his share of the property when he received notice of the proclamation. It has been decided in several cases that where a judgment-debtor has been shown to have been aware of defects in the sale proclamation before the date of the sale, and has failed to take action to get them corrected when he could have done so, he shall not be allowed afterwards to object to the sale on the ground of defects in the proclamation. In Behari Singh v. Mukat Singh (1905) 28 All. 273 it was held that where, after an inquiry as to the nature of the property, of which the judgment-debtors had notice, the Court, in execution of the decree, caused certain immoveable property to be sold by auction as non-ancestral, the judgment-debtors standing by and neglecting to supply the Court with any information as to the nature of the property sold, it was not competent to the judgment-debtors subsequently to seek to have the sale set aside upon the ground that the property was ancestral and ought to have, been dealt with in the manner provided by law in respect of such property. The two decisions, one of the Privy Council in Arunachellam v. Arunachellam, (1888) 12 Mad. 19, p.c and Mohan Lal…(Judgement-Debtor); v. Kali Charan…(Decree-Holder)., (1927) 49 All. 788 which have been referred to by the learned Subordinate Judge in his order, are to the same effect. In Arunachellam v. Arunachellam (1888) 12 Mad. 19, p.c their Lordships held that the judgment-debtor having allowed the execution-sale of immoveables to be completed without objecting on the ground afterwards alleged by him, viz., insufficiency of description within the requirements of section 287, he having been throughout aware of what the description was, the sale is not invalid Page: 569on this ground alone without more. In the course of their judgment they remarked (page 25):—

“It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant—that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed, …”

It was argued for the appellant that in this case the judgment-creditors were equally aware of the defect in the proclamation, and that as they too have taken no steps to have the defect remedied, they should not be allowed to take advantage of the sale. In the first place, there is nothing to show conclusively that the judgment-creditors were aware of the defect. The mention of the charge in the proclamation was not first made at their instance, but by the Collector, and it is possible that the error in the proclamation may not have been noticed by the judgment-creditors. Even, however, if they had noticed it and took no steps to have it corrected, there is no reason why the sale, to which they have raised no objection, should be set aside. It is the appellant judgment-debtor who seeks to set aside the sale, and the rulings cited are clear authority for holding that as he was aware of the defect in the proclamation and took no steps at the proper time to have the defect remedied, he cannot now be allowed to have the sale set aside on the ground of this defect.

It was contended that the appellant is an agriculturist and that, therefore, under section 60(c) of the Civil Procedure Code the house could not be attached and sold in execution of the decree against him. This again is an objection which the appellant could and should have raised before the sale, and as he did not do so at the proper time, he cannot be allowed to raise the objection now. Apart from this, there is no evidence to show that the house (lot No. 13) was actually in his occupation. Section 60(c) Page: 570relates only to a house in the actual occupation of an agriculturist.

The other ground on which the appellant seeks to set aside the sale is, that at the time of the sale there was no subsisting attachment on the property. The objection applies only to the property of respondent No. 11, Balkisandas. It is not denied that there was a subsisting attachment on the share of the house (lot No. 13) belonging to the appellant.

With regard to Balkisandas' share, it appears that one Jethabhai Deosi, a creditor of Balkisandas, had made a petition to have Balkisandas adjudicated an insolvent, and had obtained an ex parte order of adjudication against him. The Official Assignee of the High Court, in whom Balkisandas' estate vested, got his property freed from attachment. On December 19, 1927, the attachment on his property was actually raised. The ex parte order of adjudication was subsequently annulled. The Subordinate Judge was informed of this on July 27, 1928, and he instructed the Collector to proceed with the sale of Balkisandas' share. The learned Subordinate Judge has taken the view that the annulment of the order of adjudication resulted in the property vesting again in Balkisandas, and automatically revived the attachment which had been subsisting on it on the date of the adjudication, and which had been raised as the result of the adjudication. I have doubts whether this view can be taken as correct in view of the fact that the attachment had been expressly raised by the Court. But even assuming that there had been no attachment on the property of Balkisandas at the date of the sale, I do not think that this is a sufficient reason for setting aside the sale. There have been conflicting views held by the different High Courts as to the effect of the sale of property without any attachment. In Sorabji Coovarji v. Kala Raghunath (1911) 36 Bom. 156 it was held by this High Court that where there is no Page: 571attachment, there can be no order as to the sale of the properties. A different view was taken by the Madras High Court in Subramania Aiyar v. Krishna Aiyar. (1926) 61 Mad. L.J 172 The view there taken was that the sale of properties in execution without an attachment is not void ab initio. The absence of attachment prior to sale is only an irregularity, and the sale will be set aside on the ground of that irregularity only if the Court is satisfied that the judgment-debtor has sustained substantial injury by reason of that irregularity. The same view was taken by the Calcutta High Court in Kishory Mohun Roy v. Mahomed Mujaffar Hossein, (1890) 18 Cal. 188 where it was held that after a sale had been confirmed and a sale-certificate granted to the purchaser, the sale was not to be considered as a nullity merely by reason of the absence of any attachment. In Raja Wazir Narain Singh v. Bhikhari Ram* (1922) 2 Pat. 207 the question was again considered. The previous rulings on the question including the ruling of this Court in Sorabji Coovarji v. Kala Raghunath (1911) 36 Bom. 156 were discussed, and it was held that an execution sale of immoveable property is not void merely by reason of an omission to attach the property before the sale. The view taken in the majority of the rulings on this point is that the mere absence of an attachment prior to sale of property in execution amounts to no more than a material irregularity, and is not sufficient, unless substantial injury is caused thereby, to vitiate the sale. This is a view with which, with respect, I agree.

It has been admitted by Mr. Dharap for the appellant that it has not been shown that any substantial injury has been inflicted on the appellant owing to the want of attachment. The sale cannot, therefore, be set aside on the ground that there was no subsisting attachment on the property of Balkisandas at the time it was sold.

The last objection urged by the appellant against the sale is that there was a material irregularity with regard to the time at which the sale was held. The proclamation about the sale of the property mentioned that the sale would take place between the hours of 11 a.m and 5 p.m It was alleged for the appellant that the sale was actually completed at 1-30 p.m and that in consequence certain persons who had come to bid, and who were willing to offer a higher price for the property, were prevented from bidding. From the statement of the Mahalkari, who actually held the sale, it appears that the sale was commenced at 12 noon and completed at 3 p.m as no higher bidder came forward.

On behalf of the appellant, certain rulings have been cited to show that as the sale was not held at the time stated in the proclamation, there was a material irregularity sufficient to justify the setting aside of the sale. These cases, however, do not help the appellant. In Basharutulla v. Uma Churn Dutt (1889) 16 Cal. 794 the sale had been held an hour before the time stated in the proclamation. In Babu Ram…(Judgment-Debtor); v. Iman-Ullah…(Decree-Holder).* (1926) 49 All. 402 the sale had been adjourned to another day, and the time at which the sale would be held was not mentioned in the proclamation. It was held that was a material irregularity, and that the hour at which the sale was to be held was only of slightly less importance than the day, and ought to be clearly announced to the public.

In the present case neither of these rulings can apply. The hours between which the sale was to be held were mentioned in the proclamation, and the sale was actually held between those hours. I do not think it can be reasonably held that when the proclamation mentioned that the sale would take place between 11 a.m and 5 p.m, it must necessarily go on till 5 p.m There was sufficient notice to the public that the sale would commence at 11 a.m and it was the duty of intending bidders to see that they were present at the place fixed for the sale from that hour. Page: 573Once the sale had begun, the Court could not be expected to keep it open till the closing hour if it found that there were sufficient bidders present and the sale could be finished much earlier. I do not, therefore, think that the closing of the sale at 3 p.m could be held to be an irregularity. No sufficient cause has been shown for setting aside the sale. The order passed by the lower Court is, therefore, confirmed and the appeal dismissed with costs. There will be only one set of costs.

Appeal dismissed.

Y.V.D

Sakharlal Jamnadas v. Jerbai Sorabji Patel

Judgment Summary — N.J. Wadia, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sakharlal Jamnadas v. Jerbai Sorabji Patel

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