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A. Venkatachalam And Others v. E.M Zackria And Others
Factual and Procedural Background
The High Court recorded a categorical finding that the proclamation of sale was never published. On that basis, it treated the sale as void. The present civil appeal was filed by the auction-purchasers/ judgment-debtors challenging the High Court’s conclusion and contending that the proper remedy lay under Order 21 Rule 90 of the Code of Civil Procedure (CPC) rather than under Section 47 CPC.
Legal Issues Presented
- Whether complete absence of publication of a sale proclamation renders the court sale a nullity attracting Section 47 CPC.
- Whether the challenge to such a sale must be brought exclusively under Order 21 Rule 90 CPC as urged by the appellants.
Arguments of the Parties
Appellants' Arguments
- Order 21 Rule 90 CPC, not Section 47, governs objections relating to publication and conduct of court sales.
- Reliance was placed on S.A. Sundararajan v. A.P.V. Rajendran, (1981) 1 SCC 719, asserting that the phrase “in publishing or conducting the sale” in Rule 90 encompasses all steps after an order under Rule 64, thereby excluding Section 47.
The opinion does not provide the respondents’ specific submissions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.A. Sundararajan v. A.P.V. Rajendran, (1981) 1 SCC 719 | Interprets the words “in publishing or conducting the sale” in Order 21 Rule 90 CPC as proceedings after an order for sale under Rule 64. | Distinguished; the case concerned irregularities in settling the proclamation, not total absence of publication. Hence, it did not govern the present facts. |
| Srikakula Chinna Venkatanarayana v. Pannapati Elias, AIR 1954 Mad 1024 | Where there is no publication or conduct of sale, the sale is a nullity, not a mere irregularity. | Expressly approved and followed to hold that lack of any publication voids the sale altogether, attracting Section 47 CPC. |
| Venkateswara Ettu Naicker v. Ayyammal, AIR 1950 Mad 367 | Supports the principle that absence of publication/conduct means the sale has not been held under the Code. | Cited second-hand through the 1954 Madras decision as reinforcing the same principle. |
Court's Reasoning and Analysis
1. The Court began with the High Court’s factual finding of total non-publication of the sale proclamation. A sale conducted without any publication is fundamentally void.
2. It rejected the appellants’ reliance on S.A. Sundararajan, clarifying that the observations in that case merely indicated that proceedings prior to Rule 64 are outside the ambit of “publishing and conducting the sale.” They did not hold that post-Rule 64 defects could be challenged only under Order 21 Rule 90.
3. Drawing on Srikakula Chinna Venkatanarayana, the Court endorsed the principle that absence of publication or conduct of the sale is not a “material irregularity” but signifies that no sale occurred within the meaning of the CPC. Such a sale is, therefore, a nullity.
4. Because a void sale can be questioned under Section 47, the remedy under Order 21 Rule 90 was held inapplicable.
Holding and Implications
Civil appeal dismissed with costs.
Immediate Effect: The impugned sale remains void, and the High Court’s decision stands affirmed.
Broader Implication: The judgment reinforces the distinction between mere irregularities and fundamental voidness in execution sales—complete non-publication of a sale proclamation renders the sale a nullity, challengeable under Section 47 CPC rather than Order 21 Rule 90. No new legal doctrine was created, but existing principles were reaffirmed.
Order
1. The finding of the High Court is that there was no publication whatsoever of the proclamation of sale. If that is so, there can be no doubt that the sale is void and Section 47 is, therefore, attracted. Shri T.S Krishnamurthy Iyer, learned counsel for the appellants argues that Order 21 Rule 90 is attracted and not Section 47. He relies on the case S.A Sundararajan v. A.P.V Rajendran (1981) 1 SCC 719, (1981) 2 SCR 600. We have perused the decision. It is a case which clearly dealt with irregularities in the settling of the proclamation of sale and not a case of non-publication of the sale proclamation. Shri T.S Krishnamurthy Iyer particularly invites our attention to the following observations of the court:
“It may be pointed out that when Rule 90 of Order 21 employs the expression “in publishing or conducting the sale”, it envisages the proceeding commencing after the order for sale made under Rule 64 of the Order 21. The provisions after Rule 64 are provisions relating to publishing and conducting the sale. Setting the proclamation of sale is part of the proceeding for publishing the sale.”
2. These observations only mean that on (sic) proceedings prior to the stage of Order 21 Rule 64 do not relate to “publishing and conducting the sale” and not that proceedings subsequent to the stage of Order 21 Rule 64 will only attract Order 21 Rule 90 and not Section 47. We do not see how a sale held without any publication whatsoever can possibly be held to be a sale which is not void.
3. The case of Srikakula Chinna Venkatanarayana v. Pannapati Elias AIR 1954 Mad 1024 deals with the question of non-publication of sale. Rajamannar, C.J after referring to the observations of Justice Seshagiri Aiyar in an earlier case observed as follows:
“Sheshagiri 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 insofar 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, but 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 Venkateswara Ettu Naicker v. Ayyammal AIR 1950 Mad 367 (B), (1950) 1 MLJ 22, 1950 MWN 44 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.”
4. We entirely agree with what has been said by the learned Chief Justice in the above decision. The civil appeal is dismissed with costs.
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