ASHA Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) THE auction purchaser is the petitioner.

(2.) THE property in dispute measuring 3 acres 63 cents in extent comprised in Sy. No. 2/2 of Vallikunnu Village which belonged to the predecessor-in-interest of the petitioner, was attached under S. 36 of THE kerala Revenue Recovery Act, 1968, for short THE Revenue Recovery Act, on the requisition of the Kerala Financial Corporation to whom the predecessor-in-interest of the additional fourth respondent, owed monies due under a loan transaction.

(3.) THE reason noted in the order, Ext. P8s to set aside the sale is this: - "sub-section (4) of S. 49 of the R. R. Act provides among other things that if the date of the adjourned sale is beyond sixty days of the original sale, fresh notice shall be, served and published as if it were the original sale. THE words used are "original sale" and not previous sale. In the present case the date of original sale is 26-10-1988. THE period of sixty days from the date of original sale expired on 25-12-1988. THErefore for the sale on 4-1-1989 on or 23-2-1989, denovo proceedings should have been taken in serving and publishing notice as contemplated in S. 49 (4) of the Act. In the present case, no notice is seen to have been served on the parties concerned, regarding the sale proposed to be conducted on 4-1-1989 or on 23-2-89. THE sale is vitiated due to non-compliance of the procedure in the statute. THErefore the sale is liable to be set aside. In the result, in exercise of the powers conferred under the proviso to S. 54 of the R. R. Act, the sale is set aside and the records are returned to the Deputy Tahsildar (RR), kfc, Malappuram". THE question thus arising for consideration is: Was the third respondent justified in setting aside the sale on the ground that the sale was conducted without proper notice. THE answer to this question depends upon the construction of sub-section (4) ofs. 49. It reads: - "49. Procedure for sale of immovable property-Immovable property attached under this Act may be sold in accordance with the following provisions, namely: - 4. THE officer conducting the sale may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons therefore. If the date to which the sale is so adjourned is within sixty days of the original sale, notice of the adjourned sale shall be published in the taluk and village offices concerned, in the office of the local authority within whose jurisdiction the property is situate and also on some conspicuous part of the immovable property brought to sale. If the date of the adjourned sale is beyond sixty days of the original sale, fresh notice shall be served and published as if it were the original sale". From the plain language employed in the Section it must be held that no sale, which takes place beyond sixty days of the original sale, would be valid unless fresh notice was served and published, as if' the said sale was an original sale. Here admittedly the sale took place on a date beyond sixty days. On a perusal of the files, it can however, be seen that no fresh notice as envisaged under sub-section (4) proceeded the sale. THE sale for this reason alone must be declared to be an invalid sale. THE counsel for the petitioner nonetheless argued that, since the sale took place on a date which was fixed on a date which fell within sixty days of the original sale fresh notice cannot be insisted upon. He in this connection made reference to the first limb of sub-section (4) of S. 49. This limb provides that, if the date to which the sale is adjourned is within the sixty days of the Original sale, it is enough if the notice of the adjourned sale is published in the taluk and village offices concerned, in the office of the local authority within whose jurisdiction the property is situate and also on some conspicuous part of the immovable property brought to sale. This procedure has been complied with while adjourning the sale to 23-2-1989, the counsel submits. I am not impressed by this argument. A sale can be adjourned from time to time without insisting upon a fresh notice provided the sale takes place on an adjourned date which falls within sixty days of the original sale. But when once the sale is adjourned to a date beyond sixty days of the original sale, the sale will not be a valid one unless it be, that it was proceeded by a fresh notice contemplated under the last sentence in the section. THE sale here, inasmuch as the same took place on a date beyond sixty days of the original sale, has rightly been declared by the third respondent, as an invalid sale.