KUMMATHI NARAYANAPPA Vs. TALARI AKKULAPPA

JUDGEMENT

(1.) The main question that requires determination in this appeal is whether the petition filed by the judgment-debtors-respondents to set aside the sale is within time or not. The appellant is the decree-holder and auction purchaser in O. S. No. 72 of 1950 on the file of the District Munsif, Anantapur while the respondents are the judgment-debtors. In the execution of decree the properties belonging to the judgment-debtors were sold in E. P. No 124 of 1955 on 9-12-1955. Out of the entire properties sold three items of land were sold and purchased by the appellant for Rs. 715.00 and the same was confirmed on Some of the judgment-debtors filed E. A. No. 355 of 1956 on 9-4-1956 to set aside the sale under O. 21 R. 90 C. P. C. and Sec. 47 C. P. C. alleging that fraud was played by the decree-holder. There was no proclamation of sale and consequently the property valued at Rs. 11,000.00 was sold for a very inadequate sum of Rs. 715.00 thereby causing substantial injury to the judgment-debtors. The petition was resisted by the decree-holder. The learned District Munsif, Anantapur on a consideration of the evidence adduced came to the conclusion that there was no fraud as alleged by the judgment-debtors. However, it held that there was no proclamation of sale meaning thereby publication and that it had caused substantial loss to the judgment-debtors. However, it held that there was no proclamation of sale meaning thereby publication and that it had caused substantial loss to the judgment-debtors. In that view, over-ruling the objection in regard to the intention it set aside the sale.

(2.) 1954 Mad W.N. 492, 1954 Mad W.N. 492, 1954 Mad W.N. 492 The matter was carried in appeal to the District Judge, Anantapur. The learned District Judge formulated the following four points for determination : (i) Whether the fraud pleaded by the respondents is true? (ii) Whether there was no proclamation of sale? If so, is the sale vitiated? (iii) Whether the respondents sustained a substantial loss on account of irregularity in the sale ? (iv) Whether the application to set aside the sale was within the purview of Sec. 47 C. P. C. and not under O. 21 R. 90 C. P. C. The procedure for proclamation of sale is laid down under O. XXI Rules 66 and 67 C. P. C. R. 67 (1) provides that : "Every proclamation shall be published, as nearly as may be, in the manner prescribed by R. 54, sub-rule (2)." and rule 54 sub-rule (2) states that :- "The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the Court-house. Where the property is land paying revenue to the Government, a copy of the order shall be similarly affixed in the office of the Collector of the District where the land is situated. . . . . . . . . . . . . . . . ."

(3.) It is conceded that both the courts on evidence have found that the proclamation of sale was not publicised property by beat of drum and that the copy of the order was not affixed on a conspicusous part of the property as contemplated in the rule. There is no evidence for or against the affixation of the proclamation order on the Notice Board of the Court House or in the Office of the Collector. The only fact proved is that the proclamation was published in a local newspaper having a limited circulation. Both the courts below commenting on the evidence adduced have come to the conclusion that there was no publication of sale at all in accordance with the procedure prescribed in Rule 54 sub-rule (2). This finding of fact could not be challenged. It has, therefore, to be held that there was no publishing of the proclamation in accordance with the procedure laid down in the Code of Civil Procedure. It is not necessary to comment on the objects and reasons behind this procedure. Suffice it to say, that the main object of the publication is not only to give the judgment-debtors and others an opportunity to raise objections, if any, as to the sale but also to enable them to provide suitable purchaser for the property in auction. If a sale is held surreptitiously without due publicity the very object of the procedure contemplated would be defeated. The mere publication in a local newspaper would not do away with the necessity of the proclamation of sale by bear of drum and by affixation of copies on the 'village chavdi' or court-house and in the Office of the Collector. It has, therefore, to be concluded that there was no publication of sale in the instant case.