NAGANNA NAIDU Vs. VENKATRAYALU NAIDU

JUDGEMENT

(1.) This appeal arises out of an application by the appellant who is a judgment-debtor to set aside a court-sale of six items of property belonging to him which were sold in execution of the decree in Original Suit No. 38 of 1919 in the Court of the Subordinate Judge of Ellore, obtained against him by respondent No. 1, the decree-holder. This appeal relates only to three items of the properties ; these being items 4, 5 and 6, specified in the sale proclamation. At the sale the properties were purchased by the decree-holder himself. The application to set aside the sale was made under Order XXI, Rule 90, of the Civil P. C., which empowers the Court to set aside a sale "on the ground of material irregularity or fraud in publishing or conducting it." This power of the Court is subject to the proviso "that no such sale be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the appellant has sustained substantial injury by reason of such irregularity or fraud."

(2.) The Subordinate Judge of Ellore to whom the application had been made set aside, the sale on the grounds that the sale proclamation did not mention the revenue assessed on the properties as required by O. XXI, Rule 66(2)(b), and that the sale proclamation was not published in the Collector's office as required by O. XXI, Rule 54, read with Rule 67, of the Civil P. C.; and that as a result of these irregularities the appellant had suffered substantial injury in that the sale prices were unreasonably low. The High Court of Madras reversed this decision by its order, dated January 23, 1940, holding that in the circumstances of the case the omission to mention the Government revenue was not a material irregularity ; and that the failure to affix the sale proclamation in the Collector's office, though it was an irregularity, caused no substantial injury to the appellant. This appeal has been brought against the above decision of the High Court. Besides the irregularities referred to, the appellant had alleged also fraud in his petition, but both the Courts in India have found that no fraud had been committed.

(3.) The question for determination in this appeal is whether or not the appellant is entitled to set aside the court-sale by reason of the above mentioned irregularities.