PALANIAPPA UDAYAR Vs. ARUMUGA PANDARAM

JUDGEMENT

(1.) This is an appeal by the auction-purchaser against an order setting aside a sale. The material facts may be shortly stated. The decree in the suit directed the sale of the A and B schedule properties first; and then, if there was any deficit, the sale of the C and D schedule properties. The C and D schedule properties belonged to defendants Nos. 5 to 8, and the decree provided that the items claimed by each of the defendants Nos. 5 to 8 should be exonerated on their paying the amount specified against each. The A and B schedule properties (lots Nos. 1 and 2 in the sale proclamation) were sold for Rs. 1,200. On the date of the sale 5th defendant paid the portion of the decree amount due by him, and consequently items Nos. 53 to 75 in lot No. 3 (Cand D schedule properties) were exonerated. Items Nos. 1 to 52 in the 3rd lot were sold and realized Rs. 4,350. Defendants Nos. 6 and 7 applied under Order XXI, Rule 90, Civil Procedure Code, to the Court to have the sale of the 3rd lot set aside, on the ground that there had been a material irregularity in publishing and conducting the sale and that they had sustained substantial injury as items Nos. 1 to 52 which were worth Rs. 7,000 were sold for a sum much less than their proper price.

(2.) It appears that certain items in the B schedule did not find a place in the sale proclamation and were not included in the sale of lots Nos. 1 and 2. An attempt was made to show that the items omitted were Samudayam lands which went along with the items specified in the sale proclamation, but we agree with the Subordinate Judge that this was not proved. The sale proclamation, it may be pointed out, contains no reference to any Samudayam lands. The Subordinate Judge set aside the sale of lot No. 3. The Subordinate Judge s order is not very clear, but apparently he considered that this omission on the part of the decree- holder to inform the Court that all the B schedule items had not been included in the sale proclamation amounted to fraud, and that under the circumstances it was not necessary to prove damage or loss. He further hold that, as items Nos. 53 to 75 had been exonerated, a fresh sale proclamation in regard to the remaining items Nos. 1 to 52 was necessary, and that it was proved that there had been injury and loss to the petitioners on account of these irregularities. There is no finding by the lower Court as to whether the omission to include all the B schedule properties in the sale proclamation was accidental or fraudulent, but it is clear we think that the sale took place contrary to the directions in the decree, which authorised the sale of the C and D schedule properties only after the A and B schedule properties had been sold.

(3.) Mr. Rangachariar for the appellant contends that the lower Court, not having found that any damage was caused by the omission to include all the B schedule properties in the sale proclamation, ought not to have set aside the sale, and that the omission does no amount to a "material irregularity" in publishing or conducting the sale, and that Order XXI, Rule 90, Civil Procedure Code, is consequently inapplicable. Under the proviso to Rule 90 of Order XXI the Court must be satisfied that the applicant had sustained substantial injury by reason of the irregularity or fraud complained of. Some causal connection must be shown between the irregularity and the inadequacy of the price which the properties fetched at the sale.