KRISHNAJI RAMCHANDRA DATAR Vs. BOMANJI EDALJI

JUDGEMENT

(1.) THE lower Court has found that the specific fraud set up and explained in Exhibit 24 is not proved. That finding of fact is not assailed in second appeal. What is urged is that the sale in dispute is void, because of certain illegalities, one of "which, as found by the Court below, is that it was held at a place and time different from those fixed by the proclamation. But it is not alleged that the judgment-debtor was ignorant of the fact that the sale took place at any other locality than that mentioned in the proclamation. We must presume that he was aware of what was going on and lay by. THErefore, the case would fall within the principle laid down by the Privy Council in T.R. Arunachellam Chetti v. V.B.B.M.A.R. Arunachellam Chetti 15 I.A. 171 : 12 M. 19: "THE judgment-debtors knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olpherts Macnaghten V/s. Mahabir Pershad Singh 10 I.A. 25 : 11 C.L.R. 494 : 9 C. 656 that if there was really a ground of complaint, and if the judgment-debtor would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant." That was held of a sale where the complaint was that the property was misdescribed; whereas here the complaint is that the sale was held in a place other than that advertised. But the same principle ought to apply to the latter as to the former. Here there was ample time after the sale had taken place, for the judgment-debtor to come before the Court and say that there was no sale at all, or that the sale was contrary to the directions given in the proclamation. But he did nothing of the kind and allowed the Court to confirm the sale. We confirm the decree with costs. Heaton, J.

(2.) I quite agree with the order confirming the decrees of the lower Court with costs. It is established as a fact that the sale of certain of the lands was held at a place different from that mentioned in the proclamation. But this circumstance by itself does not seem to me to be more than such an irregularity as is contemplated in Section 311 of the Civil Procedure Code 1882. It does not appear to me to be of itself such an illegality as would render the sale void. At the same time I wish to be clearly understood not to ignore that in other cases there might be other circumstances, which, combined with the holding of the sale at a place other than that notified in the proclamation, would amount to an illegality such as to render the sale void.