CHETHANDOSJI VARU DIED DIGYADASSAN RAJENDRA RAMADASJEE VARU Vs. BOARD OF TRUSTEES TIRUMALAI TIRUPATHI DEVASTHANAMS

JUDGEMENT

(1.) THE respondent, Tirumalai-Tirupathi Devasthanams represented by its Board of Trustees, filed two suits O. S. Nos. 51 and 5 2 of 1937, for possession of properties which were under the management of the Mahant of the Hathiramji Mutt, of which the appellant is the present Mahant, and for mesne profits. THE suits were decreed as prayed for. Possession of the properties was immediately taken. THE enquiry into mesne profits was subsequently held and ultimately a decree for Rs. 2,15,285-1-6 was passed towards mesne profits in both the suits on 3 1/03/1951. Complaining against the quantum of the mesne profits, appeals Nos. 745 and 746 of 1952 was carried to the High Court of Madras. As the judgment - debtor did not obtain stay of execution of the decrees, the decrees were put in execution and the properties belonging to the Mutt were brought to sale. At the auction, the decree-holder, who had permission to bid and set off his dues against the sale price, purchased some of properties in dispute, in addition to other items not involved in these appeals and the 2nd respondent bought certain properties for Rs. 55,700.00 Subsequently, the decrees passed by the Sub court, Chittor, in O.S.Nos. 51 and 52 of 1937 were modified by this Court, to which the appeals were transferred, and decretal amount was reduced to Rs. 1,26,496-0-6 in O.S. 51/137 and to Rs. 10,778-11-0 in O.S. 52/1937. This led to the sales of some items being set aside by this court and the sales being confirmed to the extent sufficient to cover the decree debt as reduced by this court. (3) THErefore, proceedings giving rise to this appeal were initiated by the appellant under Or. XXI, Rule 90 of the Code of Civil Procedure. (4) THE complaints that formed the subject of that application no longer survive. THEy were found to be non-existing and no attempt is made to resuscitate them in this appeal. (5) Two new grounds, which were not included in the petition were urged at the time of the arguments and it is they that are pressed before us. THEy are : (1) that the taxes payable in respect of the houses were not specified in the proclamation of the sale; and 92) that a copy of the order regarding the proclamation of sale was not affixed in the office of the municipality within the limits of which the properties under appeal are situate. (6) THE trial Court disallowed these objections on the ground that the objection as to these defects was waived by the judgment - debtor by waiver of the necessity for a fresh proclamation on an earlier occasion when he sought the postponement of the sales. it held further that the prices realised were not inadequate and that in any event, the inadequate of price and could not be regarded as the effect of the material irregularities. It is this conclusion of the learned Judge that is assailed before us. (7) We have first to consider whether there are any material irregularities falling within the contemplation of O. XXI, Rule 90 c. P. C. THE provision of law which requires the proclamation to be made giving certain particulars is Or. XXI, Rule 66. That rule recites : "(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be drawn up in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment -debtor and shall state the time and place of sale, and specify as accurately as possible (a) THE property to be sold (b) THE revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment - debtor; and (f) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property. (8) We are unconcerned with sub-rules (3) and (4) and therefore we do not propose to extract them here. This rule relates to the particulars to be included in the proclamation of sale. This does not bear on the fixture of notice in the Municipal Office. That is provided by Rule 54 read with Rule 57 of that order. Sub rule (2) of rule 54 with which we are immediately concerned postulates :