Shirin Begam And Another (Decree-Holders) v. Agha Ali Khan And Others (Judgment-Debtors).

1. This is an appeal from an order of the Subordinate Judge of Cawnpore setting aside a sale of certain immoveable property. It appears that in execution of a decree held by the appellants a large number of villages belonging to the respondents were sold by auction on the 20th of July 1894. On the 15th of the following month the respondents, judgment-debtors, applied to the execution Court to have the sale set aside under the provisions of Section 311 of the Code of Civil Procedure. In their application they alleged that the property sold was "ancestral," and that therefore the decree directing the sale should have been transmitted to the Collector for execution under Section 320 of the Code of Civil Procedure. It was further alleged that the sale notification had not been properly proclaimed, and that the decree-holders had taken steps to prevent the attendance of intending purchasers at the sale, by reason of which action on their part the property was sold below the rate prevailing in the district. The decree-holders denied the truth of the statements contained in the application, and further they pleaded that, as the Court on June 9th, 1894, had decided that the property was not ancestral, it could not now go behind its previous decision, the judgment-debtors not having taken any objection before the sale was ordered. The Subordinate Judge held that, although notice of the sale proceedings had been served according to law, the judgment-debtors had no personal knowledge of those proceedings, and that the silence of the judgment-debtors could not empower the Court to direct the sale of ancestral property otherwise than in the manner provided by section 320 of act no. xiv of 1882. He further found that the judgment-debtors had failed to prove that the sale notification had not been properly proclaimed, and that they had also failed to prove any pecuniary injury. As to the question of the nature of the property the Court found that only one village, Rampur, was the ancestral property of the judgment-debtors within the meaning of the Government notification of the 30th of August 1880 and the rules prescribed in connection therewith. On that finding the Subordinate Judge came to the conclusion that he was not competent to sell that village, and he accordingly set aside the sale of July 20th, 1894, as being one held without jurisdiction, and directed the decree, so far as that village was concerned, to be transmitted to the Collector for execution.

2. The decree-holders appeal.

3. In my opinion the order under appeal cannot be supported. Section 311 of the Code of Civil Procedure permits a person whose immoveable property has been sold in execution of a decree to apply to have the sale set aside on the ground of a material irregularity in publishing or conducting the sale, and further it provides that no sale shall be set aside on the ground of irregularity unless on proof that the applicant had sustained substantial injury by reason of the irregularity. In recent cases--Arunachellam v. Arunachellam L.R. 15 I.A. 171, and Tasadduk Rasul v. Ahmad Hasan I.L.R. 21 Cal. 66, their Lordships of the Privy Council have laid great stress on the concluding words of Section 311, and held that the applicant must by evidence prove the fact of substantial injury, and that without evidence to that effect such injury cannot be assumed. In this case there is a distinct finding that no such injury has been proved. On that ground alone the application to set aside the sale should have been rejected. I therefore think it quite unnecessary to express any opinion as to whether the Court below was or was not right in its finding that the village of Rampur came within the Government notification mentioned above.

4. But there is also another and even a stronger ground--a question very fully argued at the hearing of this appeal on which, in my opinion, this application should have been rejected. In addition to an allegation of an irregularity in publishing the sale proclamation, which the Court below found to be unfounded, the application alleged a want of jurisdiction in the execution Court to sell the property because it was ancestral. I fail to see how that allegation can in any way be considered even to suggest an irregularity in publishing or conducting the sale. On the finding of the Court below, it must be taken that the necessary publication was regularly made, and no irregularity in conducting the sale was alleged. All the proceedings in and respecting the sale were perfectly regular. But that of which these applicants under Section 311 chiefly complain is not any irregularity attending the actual sale, but that the execution Court under whose orders the village was sold had no jurisdiction to sell it. They in effect must be taken to say

"all the proceedings in the publication and the conduct of the sale were regular, but the execution Court had no jurisdiction to sell, and therefore we ask that the sale be set aside."

In my opinion, bearing in mind the wording and object of Section 311, such a relief cannot be granted to a person applying under that section.

5. The object of Section 311 is to grant a summary relief on an application to a person who alleges material irregularity in the publication or conduct of a sale of immovable property which had belonged to him, and who can prove that by reason of the irregularity he has sustained substantial injury. There being no other machinery provided in the Code for setting aside a sale held in execution of a decree, a person whose property had been sold in an irregular manner would have been obliged to have recourse to a regular suit to have the sale set aside, but for the provisions of section 311. Those provisions, however, cover only the case of material irregularities in the publication or conduct of the actual sale. The material words of the section are "material irregularity in publishing or conducting it," i.e., the sale. In my opinion those words cannot be taken to confer on the Court hearing au application under Section 311 any power to inquire into the jurisdiction to sell of the Court by which the sale was held, nor is such want of jurisdiction, if established, an "irregularity in the publishing or in the conducting" of the sale itself. It may be that in the present case the Court had no power to sell, and that the sale is therefore null and void, and that the respondents would be justified in treating it as a nullity or in instituting a suit to have it declared null and void. But, however that may be, I am clearly of opinion that on an application under Section 311 the applicant cannot obtain a declaration that by reason of want of jurisdiction to sell in the execution Court a sale is null and void, and that is practically the relief asked for here. All that such an applicant can obtain is, on proof of irregularity in the publication and conduct of the sale and of substantial injury caused thereby, an order setting aside the sale, which is a very different thing from a declaration that the sale is null and void ab initio. The former relief assumes that the Court had power to sell, while the latter denies the existence of that power, Moreover, the words "set aside" are inapplicable to the case of a sale which is null and void. That which is a nullity cannot, from its very nature, be "set aside," as was held by the Bombay High Court in Shivaji Yesji Chawan v. The Collector of Ratnagiri I.L.R. 11 Bom. 429. The only possible relief against it is to have it declared to be null and void; while in the cases to which Section 311 applies the sale is merely voidable and not void, and so can be set aside. If the Legislature intended to give to Section 311 the extensive effect which is contended for here, it could easily have said so. But on the wording of the section as it stands I see no reason why it should be applied further than the plain grammatical meaning of its language permits.

6. It was argued at the hearing of this appeal that Section 312 was in point and that a Court should not confirm a sale when it had come to a finding that it had had no power to sell. I am of opinion that that argument is not sound. If I am right in the propositions I have laid down above, the result is that an applicant under Section 311 cannot be allowed in an application under that section to allege that a sale was null and void by reason of want of jurisdiction in the Court by which the sale was held. It therefore follows that a Court hearing an application under Section 311 could not have before it any materials on which it could come to the conclusion that it had sold without jurisdiction, just as in this case I hold that the Court was wrong in entering into the question of its jurisdiction to sell when it had before it only an application under Section 311 in which no question of jurisdiction could arise; If the Court found that the "irregularities" cognizable under Section 311 were not established, it would be bound under Section 312 to confirm the sale. In the present case I hold that the Subordinate Judge ought not to have entertained, on an application under Section 311, the question of his jurisdiction to sell; and, as he was of opinion that the objection taken to the regularity of the publication of the sale was unfounded, he ought to have rejected the application made to him to set aside the sale and ought to have confirmed the sale and should, I think, do so now, despite of his finding on the question of jurisdiction, which was an irrelevant and immaterial finding upon an application under Section 311. Several cases were cited to us at the hearing, two of which, Sukhdeo Rai v. Sheo Ghulam I.L.R. 4 All. 382, and Banke Lal v. Muhammad Husain Khan Weekly Notes, 1887, p. 32, are quite on all fours with the present case. But in those cases the point of "substantial injury," on which so much stress is laid by the Lords of the Privy Council in the cases cited already in this judgment, does not seem to have been brought to the attention of the learned Judges who decided those two cases, and that is a matter which very much impairs the authority of those cases.

7. For the reasons given above I would reverse the order under appeal setting aside the sale of Rampur, and I would direct that the sale of that village on July 20th, 1894, be confirmed. I would allow appellants their costs in this Court and in the Court below.

Blair, J.

8. I agree.