This appeal is on behalf of the decree-holder auction-purchaser and it arises out of a proceeding commenced by the judgment-debtors to set aside an execution sale under sec. 47 and Or. 21, r. 90, Civil Procedure Code.
The Appellant obtained a decree for a sum of Rs. 3,550 against the Respondents in Title Suit No. 19 of 1936 of the Court of the First Subordinate Judge at Howrah, and there was a declaration of charge in respect of the decretal dues upon certain properties specified in the decree. The decree-holder applied for execution of the decree by sale of some of the charged properties, and sale proclamation was issued fixing the 10th of January, 1938, as the date of sale. On the 3rd January, 1938, a notice was received by the executing Court from the Debt Settlement Board at Sajipur, under sec. 34 of the Bengal Agricultural Debtors' Act, requesting the Court to stay all further proceedings in execution. On account of this notice the sale could not be held on 10th January, 1938, and on that date the decree-holder prayed for a little time in order to enable her to make enquiries regarding the proceedings before the Debt Settlement Board. The Court directed the matter to be put upon the 15th January following, and by another order recorded on the same day directed the sale to be stayed until further orders.
On 15th January, 1938, the stay order was vacated and the properties with the exception of certain lots were ordered to be put up for sale on the 17th January, 1938 at 12 noon. On January 17th, 1938, the sale was held, but the bid being too low, it was not accepted by the Court, and the properties were directed to be sold again on the following day. On the 18th, the sale was again held, and the did of the decree-holder herself being accepted by the Court, the properties were knocked down to her.
The judgment-debtors then made an application for cancelling the sale on the ground that it was a void sale, the notice issued under sec. 34, Bengal Agricultural Debtors' Act not being withdrawn at the date when the sale was held. This application was rejected by the Court on 29th January, 1938. On 22nd August, 1938, the present application was filed under sec. 47 and Or. 21, r. 90 Civil Procedure Code, and the judgment-debtors prayed for setting aside the sale on the ground that it was an irregular and illegal sale held in contravention of the provisions of the Civil Procedure Code. Both the Courts below have held the sale to be a nullity and have set it aside on that ground. It is the propriety of this decision that has been challenged before us in this appeal.
The learned District Judge observed in his judgment, that as the sale was stayed without date on the 10th of January, 1938, and a definite date was fixed only on the 10th, the provision of Or. 21, r. 69, Civil Procedure Code was not complied with, and the sale was consequently a void sale. In support of this view reliance was placed on a decision of this Court in Notabar v. Yakub. In that case the date of sale fixed by the Court was 1st of July, 1922. That date happening to be a holiday the sale could not take place. In a title suit commenced by the sisters of the judgment-debtor claiming the property, an order was made on 4th July, 1922, that the execution case should be put up on July 7th, with an application for injunction to restrain the sale. On 7th July, the injunction was refused and the property was put up for sale on that date and was sold. It was held that as there was no order of the Court adjourning the sale to 7th of July, 1922, the sale held on that date was a nullity.
This decision obviously proceeds on the footing that the Executing Court can put up a property to sale, either on the day on which the sale was advertised to take place, or on the day to which the sale was adjourned under Or. 21, r. 69, Civil Procedure Code, and the sale would be without jurisdiction if it is held on a day to which it never had been adjourned. The proposition finds some support from the observation of Sir Corner Petharam in Basharutulla v. Uma Charan Dutt. On the other hand there are other decisions of this Court, where the learned Judges refused to take this extreme view and treated such defect as nothing more than a material irregularity which could be redressed pursuant to the provisions of Or. 21, r. 90, Civil Procedure Code, Vide Harisadhan Roy v. Shib Gopal Mitter and Jogendra Nath Bhattacharjee v. Sheikh Nabi Newaz. In the last-mentioned case Edgley, J., relied upon the pronouncements of the Judicial Committee in Tasadak Rasul Khan v. Ahmad Hussain and Gajraj Mati v. Saiyid Akbar Husain and held that failure to comply with the provisions of Or. 21, r. 67 to r. 69 of the Code would not alone render a Court-sale a nullity and it would be necessary for the aggrieved persons to treat such non-compliance as a material irregularity and take proper steps to have the sale set aside on proof of substantial injury, under Or. 21, r. 90, Civil Procedure Code.
In Tasadak Rasul v. Ahmad Husain the sale was held at a date which was Jess than 30 days from the date on which the copy of the proclamation was fixed up in the Court House. This violation of the provision of sec. 290 of the then Civil Procedure Code which corresponds to Or. 21, r. 68 of the present Code, did not according to their Lordships render the sale a nullity. It constituted a material irregularity, and before the sale could be set aside it was necessary for the aggrieved party to show substantial injury.
In the other case, a fresh sale proclamation was not issued as required by sec. 291 (Or. 21, r. 69) of the Civil Procedure Code, and it was held that such omission would not make the sale a nullity.
The question as to whether the sale could be held on a date which was not specified in the sale proclamation and to which it was not adjourned, was of course not raised in either of these cases, but as violation of one part of Or. 21, r. 69, Civil Procedure Code, was held by their Lordships in Gajraj Mati Tenrani v. Saiyid Akbar Husain to amount only to material irregularity, it can certainly be argued that the violation of the other part could not produce a different result. But even if we assume for our present purposes that the decision in Notabar Hosain v. Mohammad Yakub is right, we think that it is not applicable to the facts of the present case. Here the sale could not be held on 10th January, 1938, because of the notice issued under sec. 34 of the Bengal Agricultural Debtors' Act. The Court on that date directed the matter to be put up on the 15th and at the same time adjourned the sale till further orders. The learned Advocate for the Appellant argues that the combined effect of these two orders was that the sale was really adjourned to 15th January next. Such a construction may not be justified, but even if we do not accept that position, the utmost that could be said is, that the Court while adjourning the sale on the 10th, put off passing final orders regarding the date of the sale till the 15th. On the 15th however, the date of sale was fixed by the Court, and on the date so fixed the sale was held. It is not a case where the sale was held on a day which was not the day fixed for holding it.
It cannot be disputed that the procedure was irregular. The bidders were not expected to turn up on the 15th, as that was not the date of sale, and possibly they were not aware of the order fixing the date of sale. This was undoubtedly a material irregularity which would entitle the judgment-debtor to get the sale set aside on an appropriate proceeding under Or. 21, r. 90, Civil Procedure Code. As for ourselves we are even prepared to presume that such irregularity must necessarily lead to paucity of bidders. But we are unable to hold that the sale was a nullity out and out, the Court having no jurisdiction to hold it, and that consequently the title of the auction-purchaser could be challenged even by an outsider.
The view we are taking receives support from the decision of Guha and M.C Ghose, JJ., in Gobardhan Behari v. Sarat Chandra.
We hold therefore that the omission to fix a date for sale on the 10th of January, 1938, was a material irregularity, for which the sale could be set aside only on an application under Or. 21, r. 90, Civil Procedure Code, but it did not make the sale a nullity which would confer no title on the purchaser. In the present case the application under Or. 21, r. 90, Civil Procedure Code was made long after the period of limitation had expired. The judgment-debtors were aware of the sale, and they themselves took other steps to have the sale cancelled and no case was or could be made which would give them an extended period of limitation under sec. 18, Limitation Act. In these circumstances the application under Or. 21, r. 90, Civil Procedure Code, must be dismissed as time-barred.
The result is that this appeal is allowed, and the orders made by both the Courts below are set aside. The application of the Respondents under sec. 47 and Or. 21, r. 90, Civil Procedure Code, is dismissed. The sale will stand. No order is made as to costs either in this Court or in the Courts below.
C.C