TASADDUK RASUL KHAN Vs. AHMAD HUSAIN

JUDGEMENT

(1.) IN this case the respondents, who were judgment-debtors of the appellant:, filed a petition in the Court of the District Judge of Lucknow on the 12th of April 1890, whereby they sought to set aside the sale of certain villages which had been sold by auction by an order of that Court. The principal ground relied upon by the respondents for setting aside the sale was that it took place before the expiration of thirty days required by Section 290 of the Civil Procedure Code to intervene between the date on which the copy of the proclamation had been fixed up in the court-house and the day of sale. The matter of this petition came on for hearing before the District Judge on the 7th of June 1890 and subsequent days. On the 14th of October 1890 the District Judge dismissed the respondents' petition and confirmed the sale. The respondents appealed to the Judicial Commissioner of Oudh, who on the hearing of such appeal on the 16th of March 1891 allowed the appeal and set aside the sale.

(2.) THE appellant was mortgagee of the four villages sold, and he had on the 12th of October 1889 obtained a decree on the footing of his mortgage. In execution of this decree he caused a proclamation of sale to be issued from the Judge's Court on the 13th of February 1890, the sale being announced to take place on the 20th of March following. The main provisions of the Civil Procedure Code regulating sales are as follows: Section 274 provides that in the case of immoveable property the order of attachment 'shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be fixed up in a conspicuous part of the property and of the court-house." Section 287 prescribes the statements and information to be given by the proclamation of sale. Section 289 provides that "the proclamation shall be made in manner prescribed by Section 274, on the spot where the property is attached, and a copy thereof shall then be fixed up in the court-house." Section 290 provides that no sale shall take place "until after the expiration of at least thirty days in the case of immoveable property, calculated from the date on which the copy of the proclamation has been fixed up in the courthouse of the Judge ordering the sale."

(3.) THAT section, under which, the petition of the respondents, owners of one-half of the villages, was prevented, provides that "the decree-holder or any person whose immoveable property has been sold...may apply to the Court to set aside the sale on the ground of a, material irregularity in publishing or conducting it; but no sale shall be set aside on the ground of irregularity unless the applicant proves to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity."