RUP KISHORE Vs. COLLECTOR OF ETAH

JUDGEMENT

(1.) This is an appeal by an auction-purchaser against an order of the Subordinate Judge setting aside a sale. The sale took place on 28 February 1927, and certain property was sold for Rs. 6,500. The purchaser was the decree-holder-It is alleged, and the lower Court has held, that the property is of a much greater value and this fact is conceded by the appellant. We have, however, to consider whether the low price was caused by a material irregularity in the proclamation or conduct of the sale. The first question raised is whether there was any legal proclamation of the sale for 28 February, and the second is whether supposing that the proclamation as made for 27 February can be taken to be a proclamation for the sale held on the 28th, that proclamation itself was irregular. I will take the second point first.

(2.) The proclamation of sale for 27 February contains the ordinary details required by law under Rule 66, Order 21, Civil P.C., that is to say, there is a description of the property to be sold and a statement of the incumbrances and the amount of the decree. There is no statement of the value of the property, and the lower Court has held that this is a material irregularity, relying upon the judgment of their Lordships of the Privy Council in the case of Saadatmand Khan V/s. Phul Kuar [1898] 20 All. 412. I do not consider that the remarks of their Lordships in that case are authority for holding that the Court must under Clause (e), Rule 66(2) give a valuation of the property. What their Lordships held was that if the Court stated the valuation of the property, that must be considered to be a material fact. They did not say that this being a material fact must always be stated by the Court in the sale proclamation, and I am of opinion that if will be unwise to direct that the Court should in every case give a valuation for the property to be sold. It is clear that such action on the part of the Court might affect the price in an undesirable manner, and although certainly it is open to the Court to state anything which it considers material for the purchaser to know, and undoubtedly the opinion of the Court as to the value of the property is a material fact, yet I am not of opinion that the Court should be compelled by law to give this guide to the purchaser. For the rest there are certain minor irregularities which have been mentioned in connexion with this proclamation; thus there is some doubt as to the drum having been beaten at the right place, and it is said that the notice was not affixed to the property itself but on a tree in the neighbourhood. Failing definite proof that these irregularities affected the price finally realized at the sale I should not be disposed to hold that the proclamation was defective as regards the sale fixed for 27 February. But the sale did not take place on 27th February. It took place on the 28th. The reason for this is that on 21 February the amin who was the sale officer informed the Court that 27 February was a Sunday, and on 24 February the sale officer gave an order to the amin to hold the sale on 28 February instead. The lower Court has gone into the evidence as to whether the change of date was notified by beat of drum and it has found that the evidence is conflicting, but in my opinion this is not an essential point in the case. Either the Court could adjourn the sale to the 28 under Rule 69, Order 21, in which case the old proclamation for 27 February was still a valid proclamation, and as the new date was within 14 days there was no need for any further action; or the Court could not alter the date from 24 February to 28 without giving notice to the parties concerned. Rule 69, Clause 1 runs as follows: The Court may in its discretion adjourn any sale hereunder to a specified,, day and hour and the officer conducting any such sale may in his discretion adjourn the sale recording his reasons for such adjournment.

(3.) It is clear to me that this rule so far as it relates to the officer conducting the sale can only apply to an adjournment on the date of the sale, and I see no reason to form a different opinion as to the rule relating to the Court. In my opinion the rule means that when the date of the sale arrives it may be adjourned either by the Court or by the officer conducting the sale. Such an adjournment takes place when the parties have received their notice and have had an opportunity of appearing at the place of sale. It is for this reason that there is no need for a fresh proclamation unless the adjournment is for a longer period than 14 days. But I am not prepared to hold that the Court can, unknown to the parties, at any time alter the date fixed for the sale to some other date without giving notice. In my opinion a sale held under such circumstances would be a sale of which no notice has been given and consequently no proclamation.