SKARIA Vs. POULOSE

JUDGEMENT

(1.) This appeal is against the judgment of our learned brother Madhavan Nair, J. in Second Appeal No. 1033 of 1958. The matter arises out of an application filed by the judgment debtors (defendants 7 & 8) to set aside a court sale under the provisions of O.21 R.90 of C. P. C. The auction purchaser is the appellant before us. The sale was held on 27-1-1953 and was confirmed on 26-2-1953. The sale certificate was issued on 12-6-1953. The application under O.21 R.90 of the C. P. C. was filed on 28-7-1953. The Trial Court held that the petitioners, namely, defendants 7 and 8 had the requisite notice under O.21 R.69 but that there was violation of O.21 R.66(1) of the C. P. C. in that the adjournment of the date fixed for sale was without the leave of court and that therefore sale was void. In the result, it allowed the application. On appeal, the lower appellate court was of the opinion, that the violation of the provisions of O.21 R.69(1) of the C. P. C. was only an irregularity, and not an illegality, that the sale was therefore not void, and that the application filed under O.21 R.90 of the C. P. C. was barred by limitation. In the Second Appeal, our learned brother Madhavan Nair, J. was of the view that if the adjournment of the date fixed for the sale was without the leave of court, the sale would be void and remanded the matter to the lower appellate court for investigation of the question, as to whether the adjournment was with the leave of court or not. Hence this appeal.

(2.) The facts necessary to understand the points in controversy are these: The sale stood posted to 15-1-1953. That was a holiday. It is seen that the sale was adjourned to 17-1-1953 and then to 19-1-1953. There was no sitting on the 19th. It is seen that the sale was adjourned to 27-1-1953 on which date the sale took place, as noticed already.

(3.) On the above facts it was argued on behalf of the judgment debtors, that the adjournment of the sale from the 15th to 17th, from the 17th to 19th and from the 19th to 27th were all without the leave of court, and that therefore there was contravention of the provisions of O.21 R.69(1) of the C. P. C. The argument was met on behalf of the appellant in two ways. Firstly, it was contended that there was a presumption that official and judicial acts are properly performed and that therefore it must be inferred that the adjournments in this case were by the presiding officer. Secondly it was argued that even assuming that there was a contravention of the provisions of O.21 R.69(1) of the C. P. C. the same would only be an irregularity and not an illegality and therefore the sale would not be void.