T V TULJARAM ROW Vs. TARAMACHANDRA ROW

JUDGEMENT

(1.) This is an appeal from an order of the learned Judge on the Original Side refusing to set aside a sale by the Official Referee under the orders of the Court made in a partnership suit for the purpose of realising the partnership assets and the main ground of objection taken is that there was no place of sale mentiened in the proclamation of sale.

(2.) In Order 24A of the Original Side Rules which provides for proceedings before the Official Referee, under the head of sales by the Official Referee it is provided that, unless otherwise ordered, all sales by the Official Referee shall be by public auction, and in cases of immoveable property, shall be held at the premises. Under that rule, even though the property to be sold includes movables as well as immovables the sale must be held at the premises when the properties are sold as one lot. Even in such cases the duty of bringing in the sale proclamation falls upon the party who has the conduct of the sale. Unfortunately in this case, a printed form of sale proclamation for a sale in execution of a decree was used which for some reason or other does not strictly follow the form given in form No. 28 in the Original Side Rules but omits the place of sale. Possibly this printed form comes from the office of the Official Referee by whom a great number of sales are conducted, and having regard to the rule I have just referred to, the name of the place of sale, is not mentioned because everybody is assumed to know it. If that is so, it is a distinct defect and the sooner this form of sale proclamation is altered so as to state the place at which the sale is to be held the better. But the question in this case is whether it is open to the defendant at this stage to object to fhe sale on this ground and whether a material irregularity has been shown by which he was prejudiced so as to justify the court in setting aside the sale under O. XXI, Rule 90 or at any rate in accordance with the principles prescribed by that rule.

(3.) Under Rule 203 of the Original Side rules the order for sale is to direct the applicant to bring into Court a proclamation of sale for the approval of the Registrar and he is to adjourn the cases to come on before the Judge in Chambers on a fixed day. Then under Rule 205, the applicant is to bring in two copies of the proclamation of sale inform No. 27 or No. 28. Both these forms do contain the name of the place of sale. Then the Registrar, under Rule 206, is to determine the manner of advertising and to fix the date and place of the sale. Under Rule 208 copies of the proclamation approved by the Registrar are ,to be signed by him and the case is to be posted on the adjourned date before the judge in chambers who may then order the sale to proceed or make any such order as he thinks fit. That is the time when it is open to the parties to take any objection whatever the proclamation of sale. Under Rule 206, it is only then that they can take any objections to the lots, the market value or the reserved price mentioned in the affidavit of the applicant; but they canalso before the Judge in chambers equally take objection to such a manifest slip as the omission of the place of sale. No such objection was taken in this case although numerous other objections were urged including objections as to the manner in which the sale has been advertised. The reasons stated as to why no such objections were raised is because everyone understood that, following the practice prescribed by the rules for Uie Original Side, the sale being by the Official Referee, it would be at the premisess which were described for sale in the sale proclamation. It is not necessary foj the purpose of the present case to consider whether the appellant should be held absolutely barred from taking this objection to the absence of the mention of the place of sale in the proclamation because he did not take it before the Judge in chambers as he ought.