ALIKUNJU PATHUMMAL KUNJU Vs. AIYAPPAN SANKU PANICKER

JUDGEMENT

(1.) This appeal has been preferred by the 13th defendant and is directed against the lower Courts order rejecting his application to set aside the sale held on 30.5.1955 in execution of the decree in O.S. 90 of 1123 of that Court. The grounds urged are that the sale was adjourned to a date beyond 30 days and was held without fresh proclamation as contemplated under O.21 R.69(2) of the Civil Procedure Code, that the proclamation did not show the hour at which the sale was to be held as required under the law, that the amount directed to be deposited by the decree holder auction purchaser for payment to an attaching decree holder was not deposited on the day fixed but only on a later day and that material prejudice was caused by the irregularities in the sale.

(2.) First of all, we will deal with the question whether the sale is liable to be set aside because it was held beyond 30 days and without a fresh proclamation. O.21 R.69(2) states that when a sale is adjourned under sub-r.(1) for a longer period than 30 days a fresh proclamation under R.67 shall be made unless the judgment debtor consents to waive it. Here clearly there was no waiver. But the sale, it is pointed out by the respondents counsel, was held on the reopening day after the holidays, the 30th day expiring during the vacation. While on behalf of the appellant it is contended that the non compliance with the rule made the sale a nullity on behalf of the respondent what is urged is that if at all it is only a material irregularity which will make the sale liable to be set aside on proof of substantial prejudice. With regard to this Chitaley in his commentaries under O.21 R.69, Note (8) observes as follows:

(3.) Coming to the objection based on the ground that the hour of the sale was not shown in the proclamation as to whether there was not sufficient notification of the hour is a matter which ought to have been proved by definite evidence. It has not been done so here. This point was not even specifically raised in the memorandum of appeal. Even if there was an omission to specify the hour as contemplated under O.21 R.66(2) it would amount only to a material irregularity which would make the sale liable to be set aside on proof of material prejudice. Surno Movee Debi v. Dakhina Ranjan Sanyal (ILR 24 Calcutta 291) was cited as an authority on behalf of the appellant to show that such an irregularity is a sufficient ground to set aside a sale. The effect of that decision is only that when there is such an irregularity and substantial injury is proved by evidence though not of a direct kind the sale is liable to be set aside. There is evidence of any sort here to show that substantial injury has been caused. The effect of irregularity with regard to the time at which the sale is held came up for consideration before a Full Bench of the Cochin High Court in Kunjikrishna Menon v. Ravunny Nayar (28 Cochin 569). There in the proclamation it was stated that the sale would begin at 12 O clock and go on till 3 O clock but the sale was concluded some time before 3 PM. The judgment debtor contended that the sale was a nullity while the decree holder contended that there was nothing at all irregular in such a sale. The following observations at page 570 may be pointed out.