SANKARA NARAYANA PILLAY Vs. GANGAMMAL

JUDGEMENT

(1.) The first auction purchaser of certain properties sold in execution of the decree, in O.S. No. 219 of 3919, on the file of the Court of the District Munsif of Tutioorin, is the appellant in this Civil Miscellaneous Second Appeal. He purchased the property for Bs. 2,600 and deposited 25 percent, of that amount, but failed to deposit the balance in time. The sale was, therefore, set aside and a re-sale was ordered. At the re-sale, the same property fetohed only Rs. 1,400. The judgment- debtor then applied under Order 21, Rule 71, for the recovery of the difference of Bs. 1,200 from the appellant (first auction-purchaser), on the ground that the re- sale which resulted in the sale of the property, for a smaller amount, was caused by his failure to complete the purchase in time and that, therefore, he is responsible for paying her this difference in price. Both the lower Courts upheld the contentions of the judgment-debtor.

(2.) In this appeal, the appellant has urged "only two points which are specified as points 2 and 3 in the memorandum of appeal, presented by him to the lower Court. These are : (1) the time and place of sale were not mentioned in the proclamation issued for re-sale, and the re-sale is, therefore, null and void and cannot affect the appellant. (2) The date of the re-sale was not specified in the proclamation and therefore the re-sale would not bind him.

(3.) As regards point No. (1), it may be mentioned at the very outset that this objection was not pleaded by the appellant in his objection statement filed before the District Munsif; nor was if; argued before the first Court. No evidence also has been adduced to show that it was on account of the non-mention of the time and place in the proclamation of sale that the property failed to fetch the original price. What is argued is that the omission complained of is not an irregularity, but an illegality and that, therefore, the re sale is a nullity. As pointed out by Oldfield, J., in Jayarama Ayyar V/s. Vridhagiri Aiyar A.I.R. 1921 Mad. 583, it is difficult to lay down any general rule for distinguishing between an illegality and an irregularity and the decision in any case must rest on its special facts. The cases cited by the learned vakil in support of the argument that the omission to mention the time and the place in a proclamation for sale amounts to an illegality are all clearly distinguishable. In Basharutulla V/s. Uma Churn Dutt (1889) 16 Cal. 794, the property that had bean advertised for a particular date was sold on the date, but at an earlier hour, than that stated in the proclamation for sale and the Court held that in such circumstances, there wag no sale within the meaning of the Code. The reason is obvious and is thus stated by the learned Judge: When the time advertised arrived, the property had been sold and the whole thing was over; and when the persons came for the purpose of attending the sale at the time advertised; they found that the property had been sold and that they were too late.