Karnataka High Court
Madappa vs Lingappa And Anr. on 19 March, 1986
Equivalent citations: AIR1987KANT60, ILR1986KAR2081, 1986(2)KARLJ52, AIR 1987 KARNATAKA 60, ILR 1986 KANT 2081 (1986) 2 KANT LJ 52, (1986) 2 KANT LJ 52
ORDER
1. Civil Revision Petition No. 75 of 1981 by the petitioner is directed against the order dated 20-11-1980 passed by the Munsiff, Mandya, in Misc. No. 57 of 1976 filed under Sec. 47 C.P.C. dismissing the same.
Regular Second Appeal No. 363 of 1981 by the defendant is directed against the judgment and decree dated 9-1-1981 passed by the Civil Judge, Mandya, in R.A. No. 320/76 confirming the judgment and decree dated 411-1976 passed by the Additional Munsiff Mandya, in O.S. No. 126 of 1975 decreeing the plaintiffs suit
2. The revision petitioner in D.R.P. No. 75 of 1981 is the appellant in the second appeal. He has been referred to as the petitioner throughout in the course of this judgment.
Respondent-1 Lingappa in Misc. No. 57 of 1976 is respondent-1 in the second appeal respondent-2 Basavaiah in Misc. No. 57 of 1976 is also respondent-2 in the second appeal. The said Basavaiah has died and his legal representatives have come on record. They are referred to as respondents-1 and 2 in the course of this order.
3. Both these cases are disposed of by a common judgment as the substantial question involved in both the cases is the same.
4. Respondent-1 Lingappa filed a suit against the petitioner, in O.S. No. 212/63 to recover Rs. 245/-. The said suit was decreed ex parte on 19-6-1963. Respondent- 1 Lingappa sued out execution in Execution No. 966/63 for executing the ex parte decree. In the said execution, he got attached the revision petitioner's two lands including S. No. 6/1 on 6-&1%3. Thereafter the petitioner filed Misc. No. 175/63 under Order 9 Rule 13 C.P.C. to set aside the ex parte decree passed in O.S. No. 212/63. The said Misc. No. 175/63 was allowed and the ex parte decree passed in O. S. No. 212/63 was set aside and the suit was restored to file. Thereafter a fresh decree was passed by consent in O.S. No. 212/63 on 23-6-1964. Thereafter respondent-1 Lingappa the plaintiff in O.S. No. 212/63 sued out execution in Execution No. 573/70 in order to execute the said consent decree. S. No. 6/1 belonging to the petitioner who was defendant in O.S. No. 212/63, was sold by court auction on 21-6-1971. The decree holder respondent 1himself purchased it with the permission of the court. The sale was confirmed on 21-7 1971. Thereafter respondent-1 Lingappa filed Misc. No. 124/72 and obtained delivery of possession of the property on 10-10-1972.
According to the revision petitioner, he continued to be in possession of the property and he was never is possessed from the property.
The decree holder respondent-1 Lingappa alone filed the suit O. S. No. 126/75 in the court of the Munsiff , Mandya, for a declaration of his title to the suit property i.e. S. No. 6/1 and for permanent injunction. Later on during the pendency of the suit, he sold this property to respondent-2 Basavaiah on 15-3-1975 and the said Basavaiah came on record as co-plaintiff-2 in the said suit. An amendment was sought in the said suit praying for possession in the alternative. The said suit O.S. No. 126/75 was decreed on 4-11-1976.
5. Thereafter the revision petitioner filed Misc. No. 57 of 1976 under Section 47 read with section 151 C.P.C. on 3-12-1976 alleging that the court sale of Revision S. No . 6/1belonging to him was null and void as the cause notice was not issued to him or was not served on him, and on the ground that respondent-1 Lingappa had played fraud from the date of the institution of the suit O. S. No. 212/63 till the disposal of Misc. No. 124/Pincluding the execution proceeding in Execution Case No. 573170 and the entire execution proceeding was illegal, and also on the ground that the respondent-I decree holder Lingappa had not got attached the property at all and thus the sale without attachment, rendered the sale null and void, and also on the ground that no sale proclamation was issued or published and thus the sale held without the publication of the sale proclamation rendered the sale null and void. and also on the ground that the property which was worth more than Rs. 1,000/- had been knocked down by the decree holder respondent-1 for a paltry sum of Rs . 245/-.
6. The suit O.S. No. 126/75 was resisted by the revision petitioner who was the defendant in that suit on the revision same grounds urged by him Misc. No. 57/76. Misc. No. 57/76 was also resisted by the present respondent-1 Lingappa and respondent-2 Basavaiah.
7. After contest O.S. No. 126/75 was decreed. The revision petitioner who is the defendant in the said suit, being aggrieved by the judgment and decree passed in O.S. No. 126/75 approached the court of the Civil Judge, Mandya, with Regular Appeal No. 320/76. The Civil Judge dismissed that appeal. The defendant being aggrieved by the said judgment has approached this Court with R.S.A. No. 363/81.
8. Misc. No. 57/76 filed by the revision petitioner was also dismissed. The revision petitioner being aggrieved has approached this Court with C.R.P. No. 75/81.
9. As the question involved in the revision petition as well as in the second appeal relates to the nullity or otherwise of the sale both these matters have been heard together and both the matters are disposed of by a common judgment.
10. The facts have been already narrated above in great detail. Now the question is whether the sale of S. No. 6/1 belonging to the revision petitioner in the court auction sale is null and void for the various reasons urged by him in Misc. No. 57/76 and pleaded as defence in the suit O. S. No. 126/75.
11. It is undisputed that no cause notice as required by Order 21 Rule 22 C.P.C. was issued in Execution No. 573/70. It is also undisputed that S. No. 6/1 sold in the court auction in Execution No. 573/70 was not got attached as required by Order 21 Rule 54 C.P.C. According to the revision petitioner, even the sale notice as required by Order 21 Rule 66(2) C.P.C. was not served on him. According to the revision petitioner, the sale proclamation as required by Order 21 Rules 66 and 67 C.P.C was not at all published and a copy thereof was not affixed to the property or anywhere and it was not published at all. Thus, in short, he contended that the sale conducted under the said circumstances was null and void.
12. The learned author Shri Mulla in his Civil Procedure Code, (14th Edition), Vol. 11, on pages 1417 and 1418 has stated as: -
"This rule provides that, except where notice is dispensed with under sub-rule (2), the Court executing the decree shall issue a notice to the person against whom execution is applied for, if the application for execution is made more than two years after the date of the decree, or if it is made against the legal representative of the judgment-debtor or, against the assignee or receiver in insolvency where the party to the decree has been adjudged to be an insolvent. This gives rise to the question whether the omission to give notice as required by this rule renders a sale in execution of the decree absolutely void for want of jurisdiction, or whether the omission is a mere irregularity so as to render the sale merely void able, that is valid until it is set aside. In Gopal Chunder v. Gunamoni Dasi (1893) ILR 20 Cal 370, the High Court of Calcutta held that a notice under this rule is necessary in order that the Court should obtain jurisdiction to sell the property by way of execution, and that the omission to give notice is by itself sufficient to render the sale void. This decision was approved by the Privy Council in Raghunath Das v. Sunder Das (1914) 41 Ind App. 251 : ILR 42 Cal 72: 24 Ind Cas 304 . (AIR 1914 PC 120). In Raghunath Das's case, the judgment-debtor became insolvent pending the attachment. No notice was given to the Official-Assignee as required by clause (b) of sub-rule (1, and it was held that the sale was a nullity. Since the notice under this rule affords the very foundation of the jurisdiction, it follows that where execution is issued without previously issuing a notice required under sub-rule (1), and property belonging to the judgment debtor is sold in execution, the sale is a nullity, whether the property is purchased by the decree-holder Order 21 Rule 72, or by a third party. It makes no difference whether the property sold is movable or immovable or that the judgment-debtor had died after the property had been attached and its sale ordered in execution of a money 0ecree or after sale proclamation had been settled and issued in execution of mortgage decree. But the object of the rule is to give the judgment-debtor an opportunity to show cause why the execution should not proceed, and if the' judgment-debtor is aware of the proceeding the Court has jurisdiction to hold the sale. A fortiori if he appears in the proceedings, he cannot later raise the objection that they are bad for want of notice. So also where no notice was issued to the legal representatives of a deceased judgment-debtor under this rule but they were subsequently served with notice under Rule 66, it was held that they could not apply to set aside the Court sale held subsequently on the ground of want of notice under Rule 22."
The learned author, Shri Mulla has further stated as:-
"It has been held that the failure to issue notice is a matter of jurisdiction, not in the sense that the Court is not competent to entertain the proceedings but that they are invalid, and not binding on the judgment debtor. A sale in execution of a mortgage decree could not be held to be a nullity for the reason that no notice was taken to the legal representative under this rule (Mahadeo v. Shantilal )."
Thus, it appears to me, that the simple non issuance of a cause notice as contemplated by Order 21 Rule 22 C.P.C. may not be a sufficient circumstance to render the sale a nullity, provided the judgment debtor was aware of the execution proceedings and had an opportunity to participate in the proceedings. Similar is the view expressed by the Kerala High Court in A, K. Narayanan Nambiar v. State of Kerala, . It has been also laid down in Mithalal v. Kapoorchand, that the simple omission to issue notice under Order 21 Rule 22 C.P.C. was not fatal to the execution proceedings and by itself was not sufficient to render null and void the sale. In this case, the execution in question as admitted by sued out after the expiry of two years from the date of the decree. Hence the notice within the meaning of Order 21 Rule22 C.P.C. was required to be issued and served on the judgment debtor. But as already stated above, the simple non issuance of the cause notice as required by Order 21 Rule 22 C.P.C. is not sufficient to render null and void the sale.
13. It is undisputed that before the property was sold by the court in Execution Case No. 573/70, it was not got attached as required under Order 21 Rule 54 C.P.C. The learned author Shri Mulla in his Civil Procedure Code 14th Edition), Vol. 11, on page 1554 has stated as -
"The omission to attach property before sale does not vitiate the sale. It is not even an irregularity. Rule 64 has to be read with Sec. 51. Some High Courts have however held that it is an irregularity, but it does not vitiate a sale. The explanation to the new Rule 90 clarifies that the mere absence of or defect in attachment of the property sold is not a ground for setting aside a sale under that rule."
The explanation to Order 21 Rule 90 C.P.C. reads as: -
"The mere absence of. or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule."
14. The learned author Shri Mulla in his Civil Procedure Code 14th Edition , Vol. 11, on page 1623 has stated as : --
"Further, the grounds on which the sale can be set aside in an application under this rule relate only to material irregularity or fraud in publishing and conducting a sale. Such an irregularity can occur at and after the stage of Rule 64 and not at the stage anterior to that of Rule 64. The stage of attachment is anterior to the stage when Rule 64 applies and therefore, cannot be relied on for the purposes of application under Rule 90. The new Explanation embodies the view that absence of or defect in the attachment by itself is not a ground for setting aside a sale."
Therefore even if the property has been sold without getting it attached, it will not render the sale a nullity.
15. Then the next question is about the service of sale notice as required by Order 21 Rule 66(2) C.P.C. it is no doubt true that Exhibit D4 marked in the suit is the certified copy of the order sheet. It reads as "5th Feb. 1971- Dhr. by Sri S. S. S. Jdr.by Sri-
S. N. to Mr. Served in person through R. Post-
J. Dr. absent. Sale fee by 6-3-71"
Except this bare endorsement there is no material to show that the sale 'notice' was served on the revision petitioner who was the judgment debtor in the execution proceedings. When the revision petitioner was questioned about it in Misc. No. 57/76, he has conveniently avoided to state as to whether the signature on Exhibit D I was that of his or not. He pleads that his eyesight is defective. But that does not relieve the decree holder Lingappa from adducing evidence to show that the sale notice was really served on the revision petitioner as noted in the order sheet dated 5-2-1971. There does not appear to be any satisfactory material adduced on behalf of respondent-1 Lingappa or respondent-2 Basavaiah to show that the signature on the postal acknowledgment Exhibit D I was that of the revision petitioner. Thus there is paucity of evidence in both the cases to indicate that the sale notice was really served on the judgment debtor-revision petitioner in this case. Even otherwise the non-service of the sale notice by itself would not be sufficient to render the sale null and void.
16. It has been laid down by this Court in Bhagyalakshmamma v. S. R. Ramaswamy Iyengar ILR 11979) 2 Kant 1805 on page 1814 as :-
"Assuming that the facts of the case fall within the scope of Order 21 Rule 90 C.P.C., it is true that the High Courts are divided in their opinion as to whether the non-issuance of notice under Order 21 Rule 66 would render the sale void or voidable. In the case of Sundarabai Ramachandra Rabade v. Anandrao Haribhau Rabade, , a Bench of the Bombay High Court having reviewed the previous decisions, has come to the conclusion that the words 'Shall' in sub-rule (2) of Order 21 -Rule 66, is not mandatory, but, only directory. So according to the Bombay High Court, nonservice of notice upon the judgment-debtor, will only render the subsequent sale void able at his instance and it would not be void. But, in the case of Narayan v. Ramachandra , AIR 1948 Nag 177. His Lordship Justice Vivian Bose, as he then was of the Nagpur High Court, has held that the word 'shall' used in sub-rule (2) of Order 21 Rule bb is mandatory and the irregularities in conducting the sale shall render the sale void. That view was followed by Justice Mudholkar of the Bombay High Court, as he then was, in the case reported in Dada Narayan v. Jaichand . That is also the view taken by the Madras High Court 'in the case of Savannah v. Perumal, AIR 1955 Mad 231, and the Punjab High Court in the case Balwant Rai. v. Amrit Kaur, and the High Court of Assam in the case of Prafutla Chandra v. Calcutta Credit Corporation, AIR 1965 Assam 21. That was also the view taken by the Allahabad High Court in the case Harindra Nath v. Bhola Nath AIR 1937 All 407. In a recent decision, in the case of Mannem Peda Narisi Reddi v. Maddivenkayya , , it is held that non-issue of notice as contemplated under Order 21 Rule 66(2) renders the sale illegal and liable to be set aside and that it is not merely an irregularity that falls within the scope of Order 21 Rule 90 C.P.C.
It has been further held by this Court on pages 1814 and 1815 as: -
"In the case of Natarajan v. Ws. Chandmull Arnarchand, (1971) 1 Mad U 474 a Division Bench of the Madras High Court has reiterated the view that Order 90 (it should be Rule 90) would apply only where a sale is sought to be set aside, on the ground of material irregularity or fraud in publishing or in conducting it. The want of notice under Order 21 Rule 66 is a stage anterior to the publication of the proclamation of sale under Rule 61 or conducting the sale and it will not fall under Order 21, Rule 90 C.P.C. The application would fall under Section 47 C.P.C.- and the residuary Article 181 of the Limitation Act~ 1908 corresponding to Article 117 of the new Limitation Act, 1963."
17. This Court has held in Nanjappa v. Doddarnuniswamy Gowda 11963) 1 Mys U 448 as:-
"Referring to the earlier Madras case his Lordship Panchapakesa Ayyar states that "the Bench seems to have considered that a mere absence of notice under Order 21 Rule 66 C.P.C. would not by itself make the sale a nullity but would at best be only an irregularity. It, therefore, says in effect that each case has to be dealt with on its merits, on the facts and the evidence. So, of course, it is possible that in some rare cases a failure to issue notice under Order 21 Rule 66 C.P.C. may make the. Sale void as when the sale is held without the judgment-debtor being ever aware of it, but, that normally a mere failure to issue a notice under Order 21 Rule 66 C.P.C. to the judgment-debtor would not make the sale null and void but would only be an irregularity, especially if the evidence shows as here that the judgment-debtor was very well aware of the sale proclamation and the sale even though a notice under Order 21 Rule 66 was not given to him.
Thus, it depends upon the facts of the -case to whether the non-issue of a notice leads to a mere irregularity or illegality."
Thus the non-issuance or the non-service of the sale notice by itself may not be sufficient' to render the sale a nullity. If the judgment debtor had the knowledge of the execution proceedings and had an opportunity to participate in the execution proceedings, the simple non issuance of the sale notice may not be sufficient to render the sale, a nullity.
18. Then the next question is whether the non-publication of the proclamation as required by Order 21 Rules 66 and.67 C.P.C. would render the sale a nullity.
19. It has been laid down: in, Srikakula Chinna Venkatanarayana v. Pannapati Elias, as:
"The substantial question which emerges at the outset is whether a court sale held without any publication whatever of the proclamation of sale is void or only voidable at the instance of the judgment-debtor or other aggrieved party and that only by an application under Order 21 Rule 90 of the' Code. In dealing with the authorities cited before me on both sides, one has to keep the distinction between a case where there has been a publication of the proclamation but the publication has been found to be defective in certain particulars and a case in which there has been no publication at all.
A case of this Court in which there was no proclamation at all is that covered by the decision in 'Venkateswara Ettu Naicker v. Ayyammal' . There, Krishnaswami Nayudu J. after accepting the finding of the Court below that there was no proclamation at all, held that the sale held without proclamation was void. The learned, Judge observed :
"It cannot be said that the total failure to make the proclamation under Order 21 Rule 66 is a mere irregularity in the publication or conduct of the sale".
He relied upon the decision of a Bench of this court in 'Jayararna Aiyar v. Vridhagiri Aiyar ', AIR 1921 Mad 583. That was not a case where the proclamation of sale was not published at all. It was published but not in the village where the lands were situate. But the process server had intimated at the village that the sale would be held at a place and by an office different from those fixed by the proclamation. It was held-that the sale was illegal and a nullity and not merely 'irregular' within the meaning of, Order, 21 Rule 90,of the-Code.
Old field, J. after pointing out that no general rule for distinguishing between an irregularity and an illegality had ever been laid down, observed that on the facts of the case the result was as if the property had never been sold under the Code at all. The decision in 'Bashartulla v. Umachurn Dutt, (1889) ILR 16 Cal 794 was expressly approved. There, where the property that had been advertised for a particular date was sold on that date but at an. earlier hour than that stated in the proclamation, the Court held that there was no sale within the meaning of the Code. Seshagiri Aiyar J, was of the opinion that the Code itself gave some indication as to when a sale can be regarded as irregular and when illegal. He thought that on the language of Order 21, Rule 90, where there was no publication or conduct of the sale, the sale should be regarded as illegal. On the facts of the case before him, his conclusion was that in effect there had be en no publication at all.
We are not now concerned with the correctness of the decision in so far as it held that on the facts of the case there had been no publication at all. The value of the decision, in my opinion, lies in the enunciation of the general principle that where there is no publication or conduct of the sale, then it is not a case of mere irregularity. It is as if a sale had not been held at all within the meaning of the Code. If there was no publication of the sale whatever, at any place or in any manner, but some officer of the court chose to hold a sale at some places on some date, it cannot be said that there has been a material irregularity or fraud in publishing a sale.
Likewise it follow from, the decision that if there is in effect no conducting of the sale it would not be a case of material irregularity in conducting it. Suppose the selling officer does not conduct an auction but merely takes a private offer and reports to the Court that the property had been sold to the person making that offer. Can it be said that there has been a conduct of the sale? I think not. Following the principle of this decision and the decision of Krishnaswami Nayudu J. in and on the concurrent findings of the Courts below that there was no publication of the sale whatever, I hold that there has been no sale at all under the Code and the alleged sale was a nullity."
The view expressed by Rangoon High Court in V. S. Sankaran v. Hasta Bahadur Chettry, AIR 1934 Rangoon 188 runs contrary to the rulings and the principles laid down by the Madras High Court and the said various decisions. The Rangoon High Court has not considered in greater detail the various decisions of the Madras High Court and the decisions of the other High Courts in this Country. Therefore with all due respect to the learned Judge, I think that the principles laid down by the Rangoon High Court cannot be accepted.
20. This Court had an occasion to deal with a similar matter in Doddamane Gurupadappa v. Hugulavalli Ranganna Gowda, AIR 1959 Mys 38. A Division Bench of this Court consisting of N. Sreenivasa Rau J., and S. S. Malimath, J. held in para 9 on page 39 as: -
"The correct principle appears to be that where there is no publication at all or no conduct of the sale as published, it cannot be said to be a mere irregularity. It means that there was no sale held, as required by the provisions of the Civil Procedure Code. In such cases, the sale may be held to be void. But in cases where there has been a publication but there has been some defect in the manner of publication or of conduct of the sale, that will be a mere irregularity. The above cases do not lay down anything beyond this principle."
Thus the view expressed by this Court in Doddamane Gurupadappa's case which falls in line with the Madras High Court itself, clearly lays down that a sale held without the publication of the sale proclamation renders the sale void or nullity.
21. The Andhra Pradesh High Court in Kummathi Narayanappa , v. Talari Akkulappa , has stated as : -
"If there is an application for setting aside the sale and there is some irregularity in the conduct of it, it will come within the purview of Order 21 Rule 90 Civil P.C. provided it is a material irregularity whereas if the mandatory provisions of publication have been -altogether omitted or not complied with there would be no publication at all in the eye of law and the matter Would attract the provisions of Section 47, Civil Procedure Code."
22. The Kerala High Court has stated in P. K. Chidambara Iyer v. Kunhamutharnmad as:- "The real question for decision is whether the failure to affix the proclamation in any part of the property proclaimed for sale is only a material irregularity or is something more than that, viz., an illegality. The Madras High Court held in Jayarama Aiyar v. Virdhagiri Aiyar, AIR 1921 Mad 583 that there was a distinction between an irregularity and an illegality and that was one of degree. Old field J, observed that an irregularity of so serious a nature as to render the publicity which afforded one main security for the fairness of public sales must be deemed to be an illegality. Seshagiri Ayyar, J. pointed out in the same case that the Code itself gave some indication as to when a sale could be regarded as irregular and when illegal. I am also of the same opinion, and according to me, Order XXI Rule 90 itself gives sufficient indication regarding the scope and ambit of that provision. Rule 96 deals with the setting aside of a sale "on the ground of material irregularity or fraud in publishing or conducting it". If the defect goes beyond the realm of 'material irregularity or fraud in publishing or conducting' the sale, then it is an illegality and in that case the sale is void. As observed by Seshagiri Ayyar J, where there is no publication or conduct of sale, it is a right inference to draw from Rule 90 that the sale should be regarded as illegal. In the case before me the finding of the learned subordinate Judge, which I have accepted, is that there was no affixture of the proclamation on any of the items of properties proclaimed for sale; and that amounts to a complete absence of proclamation. Therefore, it is not a mere irregularity in the publication or conduct of the sale, but it is illegality of there being no publication at all."
23. The learned counsel Shri Raghavendra Rao referred, me to Amolak Singh Join v. Smt . Satyawati , . It was a case where there was non-issue of the notice under O. 21, R. 66(2), C.P.C. It was not a case where the sale proclamation was not published at all. Therefore the principle laid down in the said Delhi case cannot be of assistance in deciding as to whether the non-publication of the sale proclamation would render the sale a nullity or only irregular. Similar is the view expressed by this Court in K. Shankar v. Syndicate Bank, ILR (1979) 1 Kant 1326.
24. Order 21, Rule 90, C.P.C. reads as:-
"(1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interest are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it."
The publication and conducting the sale would arise only after the sale proclamation is issued. If there is no sale proclamation issued, the question of any irregularity or fraud in publishing or conducting it, does not arise. The material irregularity or fraud in, publication or conducting it would arise only after the sale proclamation is issued. If there is no sale proclamation issued at all, it would not be a case of simple material irregularity or fraud in publishing or conducting the sale at all.
25. Order 21, Rule 66, C.P.C. reads as:-
"(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such. proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as fairly and accurately as possible -
(a) the property to be sold, or where a part of the property would be sufficient to satisfy, the decree, such part;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or is part of an estate, paying revenue to the G.0"Vernment;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property :
Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under R. 54; it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified .in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto."
Therefore it is a mandatory provision. If the said mandatory provision is violated and if the sale proclamation is not issued at all, then it would be a violation of the mandatory provision and therefore a sale held without complying with the mandatory provision, would be a nullity and void ab-initio.
26. Rule 67of Order 21, C.P.C. prescribed the mode of making proclamation. It reads as:-
"(1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by R. 54, sub-r, (2).
(2) Where the Court so directs- such proclamation shall also be published in the official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale. etc., etc.,"
Section 67 prescribes the mode of making, the proclamation. Making or publishing the proclamation would arise only if the sale proclamation is issued. If no sale proclamation is issued, the question of publishing it as required by Rule 67 does not arise at all. This is a case where no sale proclamation has been issued and published at all. A copy of the sale proclamation has been marked as Exhibit D3 in the suit as Exhibit P4 in the Miscellaneous case. The description of the property given in the sale proclamation reads as:-
"Schedule of property (Vernacular matter omitted - Ed.) It was handed over to the Amin for publication. The Amin returned it unexecuted. That Endorsement reads as: -
(Vernacular matter omitted - Ed.) This Endorsement would show that it is as good as non-issuing the sale proclamation as required by O. 21, R. 66, C.P.C. Admittedly there has been no publication at all of the sale proclamation. No sale proclamation has 'been attached to the property. Therefore, in my opinion, these circumstances show that though the sale proclamation has been issued in this case, it is no sale proclamation at all and it does not amount to an issue of sale proclamation for publication of the sale proclamation as required by O. 21, Rr. 66 and 67, C.P.C. Therefore, the sale that has been held in the execution is no sale at all. It is a nullity and void ab-nitio.
27. Then the next question is one of limitation. As already stated above, there is a marked distinction between an application filed under O. 21, R. 90, C.P.C. and an application filed under S. 47, C.P.C. The application to be filed under O. 21, R. 90, C.P.C. requires that a sale can be set aside if there is a material irregularity or fraud in publishing or conducting it. But if it goes beyond it and if the circumstances render the sale a nullity, then it is only by filing an application under S. 47, C.P.C. that the sale can be challenged. Here in this case it is not a simple material irregularity or fraud in publishing or conducting it. It is a case of non-issuance of the sale proclamation as required by O. 21, Rr . 66 and 67, C.P.C. Therefore the case clearly falls under S. 47, C.P.C. If the application falls under S. 47, C.P.C., it is Art. 137 of the Indian Limitation Act that would be attracted to the facts of the case. Article 137 of the Limitation Act is residuary Article. It reads as : -
"137. Any other application Three When the for which no years. right to period of limita - apply tion is provided accrues."
elsewhere in this Division.
Therefore looking to the circumstances I am of the view that it is Art. 137 of the Limitation Act alone that would be applicable to the facts of the case. Article 137 does not say that the limitation of three years would start running from the date of the sale. The starting point is when the right to apply accrues. '
28. It has been clearly stated by the judgment debtor in para 6 of the petition in Misc. No. 57/76 as: -
"The respondents filed O.S. No. 126/75 for declaration and for possession on the file of the Additional Munsiff, Mandya, against the petitioner. The Court observed that the remedy is to set aside the sale. The petitioner filed an appeal before the Civil Judge, Mandya, against the judgment and decree of the lower Court. The O.S. No. 126/75 was filed on 26-2-1975. The petitioner came to know the fact of the suit from the villagers and the fact of the Court sale only from his Advocate on 14-1975 on which date he, engaged the Advocate."
Thus these allegations and the material on record would show that the revision petitioner came to know about the Court auction sale for the first time on 14-1975. Therefore, in my opinion, the limitation would start running from 14-1975 itself. The Miscellaneous Case has been filed on 3-12-1976 i.e. well within three years from the date of coming to know about it. Therefore the application Misc. No. 57/76 is well within time. Therefore, under these circumstances, the Munsiff committed an error in dismissing Misc. No. 57/76.
29. Thus, the order passed by the Munsiff dismissing Misc. No. 57/76 is set aside. The revision is allowed. The sale is held to be a nullity and void ab-initio, and thus it is set aside.
30. The suit - O.S. No. 126/75 - has been filed by respondent 1 Lingappa and respondent 2 Basavaiah for declaration to title to the suit land S. No. 6/1 and for the permanent injunction or in the alternative for possession on the ground that respondent I Lingappa who was the decree-holder had purchased the property in question in Court auction and that' he obtained possession of the same through Court and that the defendant Madappa i.e. revision petitioner was interfering with his possession. Respondent 2 Basavaiah subsequently has been impleaded as plaintiff 2 as he claims to have purchased the property on 15-3-1975. The basis of the title of respondent I Lingappa is his purchasing the suit property in the Court auction. When that Court auction sale is a nullity, respondent 1 Lingappa does not get any title to the property at all. If he does not get any title to the property, respondent 2 who has purchased the property from Lingappa, also does not get any title to the property. Therefore, respondents 1and 2 who are plaintiffs 1 and 2 in the said suit, are not entitled to get a declaration of their title to the suit property as they have failed to prove the same.
31. There is no satisfactory evidence to show that respondents 1 and 2 were in possession of the property. The very fact that later on they thought it fit to ask the relief of possession, is also an indication to show that they were never in possession of the property. Therefore, respondents 1 and 2 are not entitled to get a declaration and they are also not entitled to get the relief of injunction or possession.
32. Thus the judgment and decree passed by the Munsiff in O.S. No. 126/75 and the judgment and decree passed in R.A. No. 320/76 by the Civil Judge, Mandya, cannot be su9tained and they are set aside. Regular Second Appel No. 363 of 1981 is allowed. The suit is dismissed.
33. There will be no order as to costs in Misc. No. 57/86 and C.R.P. No. 75 of 1981 and also in O.S. No. 126/75 and R.A. No. 320/76 and R. S. A. No. 363 of 1981.
34. Order accordingly.