Kerala High Court
C.C. Sivaprasad vs K. Sasidharan And Anr. on 27 January, 2006
Equivalent citations: AIR2006KER167, AIR 2006 KERALA 167, 2006 (3) AKAR (NOC) 404 (KER), 2006 A I H C (NOC) 210 (KER), (2006) ILR(KER) 1 KER 602, (2006) 1 KER LJ 841
Author: Sasidharan Nambiar
Bench: M. Sasidharan Nambiar
JUDGMENT Sasidharan Nambiar, J.
1. Auction purchaser, second respondent in E.A. 290/ 92 and E.A. 147/02 in E.P. 64/88 in O.S. 20/87 on the file of Sub Court, Cherthala is the appellant. First respondent is the first judgment debtor and the petitioner in E.A. 147/02 and E.A. 290/02. Second respondent is the decree-holder Bank and the first respondent in the E.As. Second respondent decree-holder instituted O.S. 20/87 for realisation of Rs. 31635.25 with interest against first respondent who was the first defendant, and defendants 2 and 3. On SI-10-1987, a decree was granted in favour second respondent to realise Rs. 31,365.25 with 14 1/2% interest. Second respondent filed E.P. 64/88 for execution of the decree on 25-5-88. First respondent filed an objection disputing the executability of the decree. Overruling the objection, executing Court issued notice under Order XXI, Rule 66 of the Code of Civil Procedure (hereinafter referred to as the Code). First respondent filed an objection on 9-1-90 contending that he has no interest in the property sought to be sold. Executing Court overruled the objections as per order dated 21-2-90 and posted the E.P. for proclamation to 21-2-1990. On 6-4-1990, executing Court directed proclamation and sale of the property shown in the sale papers belonging to first respondent. When the case thus stood for sale, E.A. 296/90 was filed by one Sulabha under Order XXI, Rule 58 of the Code claiming that as per an agreement for sale, first respondent had transferred the property in her favour. As per order dated 23-11-1991, the claim petition was dismissed. The Court posted the E.P. for proclamation and sale to 21-1-92. As proclamation was not effected, executing Court posted the case for sale to 9-3-1992 on 21-1-1992. After proclamation the property was sold in public auction on 9-3-1992. It was purchased by the appellant for Rs. 25,000/-. When the E.P. stood posted for confirmation of sale, first respondent filed E.A. 290/02, an application under Order XXI, Rule 90 of the Code to set aside the sale alleging that there was material irregularity in publishing and conducting the sale. Both appellant auction purchaser and second respondent decree-holder filed objections to the petition. First respondent was examined as P.W. 1 and Exts. A1 to A7 and Exts. C1 report and C1 (a) plan were marked on his side. Ext. B1 was marked on the side of the appellant. As per order dated 6-4-1992, executing Court dismissed E.A.290/92. On 22-6-02, first respondent filed E.A. 147/02 under Order XLVII, Rule 1 of the Code, for an order to review the order dated 6-4-2002 in E.A. 290/ 92 alleging that there was apparent error and sufficient reasons to review the order. The decree-holder and auction purchaser opposed the petition by filing written objections. As per impugned order dated 30-6-2004 F.A. 147/02 was allowed holding that executing Court had not passed a judicial order in the matter of settlement of proclamation and as proclamation was not settled, the previous order dated 6-4-2002 is vitiated by error apparent on the face of the record and the sale is vitiated. Consequent to that order, the Court below allowed E.A. No. 290/92 which stood dismissed. The sale was set aside. E.P. was posted for further steps. Auction purchaser is challenging the impugned order of the executing Court in this appeal.
2. Appellant challenged the order contending that there was no apparent error or other sufficient reason to review the order in E.A. 290/92 and the order is unsustainable. It was contended that in fact there was proclamation for sale and all necessary procedures were duly complied with before the property was sold. It was further contended that the Court below should not have reviewed the order in the absence of any substantial injury sustained by first respondent and sale could not be set aside under Rule 90 of Order XXI and therefore the order in E.A. 147/02 and the order setting aside the sale are to be set aside.
3. We heard the learned Counsel Dr. V.N. Sankerjee appearing for the appellant and Advocate Mr. Dinesh R. Shenoy appearing for first respondent-judgment-debtor. Advocate Dr. Shankerjee vehemently argued that Court below omitted to take note of the limited powers under Rule 1 of Order 47 of the Code. The order passed on 6-4-2002 was after considering all the relevant facts and the scope of a petition for review is not similar to the appellate powers to interfere with an erroneous order and there was no apparent error on the face of the records or other sufficient reasons and for that sole reason the order of the Court below is illegal and unsustainable. It was pointed out that Sub-rule (2) of Rule 90 of Order XXI of the Code specifically provide that no sale shall be set aside on the ground of irregularity or fraud in the absence of substantial injury sustained by the judgment-debtor by reason of such irregularity or fraud and the Court below omitted to consider this aspect. Advocate Mr. Dinesh Shenoy argued that executing Court was satisfied that petition under Rule 90 was earlier dismissed without taking note of the fact that there was no settlement of proclamation and absence of settlement of proclamation goes to the very jurisdiction of the executing Court to order sale of the properties and under such circumstance, there was sufficient reason to review the previous order and the impugned order is perfectly legal and regular and warrants no interference. It was argued that property worth more than a lakh of rupees was sold for a paltry sum of Rs. 25,000/-and first respondent is prepared to compensate the auction purchaser by paying interest for the amount he had deposited in the Court and in such circumstance, in the interest of justice, there is no reason to interfere with the order and the appeal is only to be dismissed.
4. The points arise for consideration are:
1. Whether there was an apparent error or other sufficient reason warranting a review of the order dated 6-4-2002 in E.A. 290/92.
2. Whether the Court below was justified in setting aside the sale under Rule 90 of Order XXI of the Code.
5. From the records, it is clear that in spite of the decree dated 31-10-1987, first respondent/first judgment debtor or the co-judgment debtors did not pay any portion of the decree amount. Second respondent was therefore compelled to execute the decree by sale of the mortgaged properties. The property belonging to first respondent was sought to be sold. In answer to Rule 66 notice, first respondent filed an objection contending that as per an agreement for sale in favour of Sulabha he had already parted with possession of the property sought to be sold and he has no saleable right or interest in the property. Sulabha in turn filed E.A. 296/ 90 under Rule 58 of Order XXI claiming that the property was agreed to be sold in her favour by first respondent for Rs. 30,000/-and after receiving Rs. 25,000/- as advance she was put in possession of the property and later first respondent received the balance sale consideration of Rs. 5000/- also and she is the absolute owner of the property and it cannot be sold in the E.P. The executing Court dismissed the claim petition. Sulabha challenged that order before this Court in E.F.A. 16/92 which was also dismissed. It is pertinent to note that the contention of first respondent in answer to Rule 66 notice was also that he has no saleable interest in the property sought to be sold as he had agreed to sell the property in favour of the claim petitioner and had received the entire consideration. The only other contention raised was that the market value of the property was not Rs. 25,000/- as alleged; but Rs. 80,000/-. After overruling the objection and the dismissal of claim petition executing Court posted the case for sale and ultimately sale was conducted on 9-3-1992 and was purchased by appellant for Rs. 25,000/-. First respondent filed E.A. 290/92 on 31-3-1992 seeking an order setting aside the sale. As is clear from E.A. 290/92, sale was sought to be set aside alleging material irregularity in publishing and conducting the sale. What was contended was that the property which would have fetched Rs. 1,20,000/- on the date of the sale was sold for a meagre sum of Rs. 25,000/- and it was because of the collusion between the decree-holder and auction purchaser. It was also contended that the facts stated in the proclamation schedule are not correct as the value of the properties shown is low and the number and the age of the trees shown are not correct. It was further contended that the boundaries of the property are wrongly described in the proclamation schedule and as a result general public hesitated to participate in the auction and the sale is to be set aside. Subsequently first respondent got the petition amended by filing E.A. 210/00, a petition under Order VI, Rule 17 of the Code incorporating additional grounds to set aside the sale. The petition was allowed and fresh grounds were introduced in the petition eight years after the filing of Rule 90 petition. In the additional grounds so introduced, it was contended that the decree holder did not produce encumbrance certificate and no proclamation was settled and executing Court did not get jurisdiction to sell the property as there was no settlement of proclamation and the sale conducted was without jurisdiction. The executing Court recorded the evidence after hearing the parties, the petition was dismissed on merits as per order dated 6-4-2002. The learned Sub Judge on the materials and evidence found that there was no material irregularity or fraud either in publishing or conducting the sale. It was sought to be reviewed in E.A. 147/02 contending that the dismissal was without considering the illegalities. What was contended by first respondent was that a portion of the property was sold by the first respondent four years before the Court sale and that should not have been taken into consideration for finding the adequacy of the value of the property and as there was no order settling the proclamation, the Court sale is vitiated and therefore the earlier order is to be reviewed.
6. The learned Counsel appearing for the appellant relying on the decision of the Apex Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi , in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and in Chidambaram Pillai v. Madhavi Amma, 1988 (2) KLT 427 argued that the power of review was improperly exercised as if it was an appeal and for that sole reason, the impugned order is to be set aside. The learned Counsel appearing for first respondent argued that absence of settlement of proclamation goes to the very jurisdiction of the executing Court to sell the property and as it was omitted to be properly taken into consideration earlier which was an apparent error on the face of the records, the Court below rightly exercised the power of review and there is no reason to interfere with that order.
7. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the Code. Dealing with the similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of Constitution of India, Apex Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through His Lordship Chinnappa Reddy, J, made the following observations (Para 3):
It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.
8. A review cannot be an appeal in disguise. The question whether a statement in the previous order which was wrong would amount to an apparent error warranting the exercise of the power of review was considered by the Apex Court in Thungabhadra Industries Ltd. v. Government of Andhra Pradesh . It was held (para 11):
Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
The Apex Court in Meera Bhanja v. Nirmalakumari Choudhury considered the question as to what is an error apparent on the face of the record as provided under Order 47 of the Code. It was held (para 8 of AIR):
So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions.
The following observations in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale was quoted with approval:
An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinion can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.
The Apex Court in Parsion Devi v. Sumitri Devi reiterated the position as follows:
Under Order 47, Rule 1, CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1, CPC. In exercise of the jurisdiction under Order 47, Rule 1, CPC, it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise.
9. It is clear from the impugned order of the learned Sub Judge that the application for review was considered as if it was an appeal. The learned Sub Judge has proceeded to rehear the application filed under Rule 90 of Order XXI afresh ignoring the limited power available under Order 47, Rule 1. No apparent error was evident in the impugned order dated 6-4-2002 which was reviewed by the learned Sub-Judge. Even if it is taken that the order dated 6-4-2002 was erroneous that will not enable the learned Sub Judge to review the order as if the petition was an appeal. From the records of the executing Court, it cannot be said that there was no settlement of proclamation, as has been found by the Court below. Even if it is taken that there was no settlement of proclamation, that will not itself enable the judgment debtor to get the sale set aside unless he could satisfy the Court that by such irregularity, substantial injury was sustained. The learned Sub Judge in the impugned order did not even consider the existence of a substantial injury and still reviewed the earlier order on the ground that there is an apparent error when there was no such apparent error. The learned Sub Judge was not correct in exercising the power of review when there was no glaring omission or patent mistake or grave error that has crept in the order dated 6-4-2002. Even if the order was erroneous and could have been interfered in an appeal, that cannot be reviewed under Order 47, Rule 1 of the Code. On the facts and the records available, the finding of the learned Sub Judge is unsustainable. The order dated 6-4-2002 could not have been reviewed exercising the power under Order 47, Rule 1 on the grounds alleged.
10. To exercise the powers for review there should be some mistake or error apparent on the face of the record or discovery of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made or any other sufficient reason. If not the power for review could not have been exercised. Even according to first respondent, there was no discovery of a new and important matter or evidence which could not be produced by him earlier before the dismissal of his petition on 6-4-2002. What was raised by the petitioner was the very same grounds that were alleged in his application to set aside the sale. They were not accepted and the petition was dismissed as per a detailed order dated 6-4-2002. It cannot be disputed that a point which may be a good ground for an appeal may not be a good ground for an application for review. An erroneous view of evidence or law is a ground for appeal but it is not a ground for review. The power of review is a very restricted power which authorise the Court to look over through the earlier order, in order to correct the same, if some material which it ought to have considered has escaped consideration or failed to be placed before it.
But the Court cannot under the cover of that power arrogate to itself the power to decide the case once again on the ground that on the reassessment of evidence the earlier finding was incorrect. Apex Court in Ariban Tuleshwar Sharma's case, (1979) 4 SCC 389 : (AIR 1979 SC 1047, para 3) (supra) held:
But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.
The Apex Court in M/s. Northern India Caterers (India) Ltd.'s case, (supra) reiterated the position as follows:
In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47, Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of error apparent on the face of the record (Order XL, Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility; Sow Chandra Kanta v. Sheikh Habib .
It is settled position that the normal principle is that a judgment or order pronounced by the Court is final. Any departure from that principle is justified only when circumstance of a substantial and compelling character make it necessary to do so. A review proceeding cannot be repeated with the original hearing of the case or the appellate powers. The finality of the judgment or order delivered by the Court will not be reconsidered except where a glaring omission or a patent mistake or a grave error has crept in the earlier order. Unfortunately, the Court below did not appreciate this fundamental aspect while considering E.A. 147/02.
11. The order dated 6-4-2002 dismissing the petition to set aside the sale was reviewed on the short ground that the proceeding paper and records do now show that proclamation was settled. The order shows that no other point was urged before the learned Sub Judge. Finding that the absence of settlement of proclamation has vitiated the sale the earlier order dated 6-4-2002 was reviewed and the sale was set aside. There is force in the argument of the learned Counsel appearing for the appellant that the learned Sub Judge failed to take note of Sub-rule (2) of Order 90 of the Code.
12. Rule 90 of the Code provides for an application to set aside sale on the ground of irregularity or fraud. Sub-rule (1) enables the decree holder, auction purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by sale to apply to the Court to set aside the sale of an immoveable property, on the ground of material irregularity or fraud, either in publishing or conducting it. Sub-rule (3) mandates that no application to set aside a sale under the Rule shall be entertained upon any ground, which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Sub-rule (2) of Rule 90 of the Code reads:
No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
Even if there was any material irregularity or fraud either in publishing or conducting the sale that by itself is not a ground to setting aside the sale. In addition to such material irregularity or fraud, the Court has to satisfy that the applicant has sustained substantial injury by reason of such irregularity or fraud. Unfortunately the question whether first respondent has sustained any injury much less substantial injury by reason of the alleged irregularity in publishing or conducting the sale was not considered by the Court below at all. Instead finding that there was no settlement of proclamation the sale was set aside. The order on the face is illegal as it violates the mandatory provision of Sub-rule (2) of Rule 90.
13. The crucial question is whether there was any ground to review the earlier order and to set aside the sale. The ground which was taken by the learned sub-Judge to set aside the sale, was want of settlement of proclamation. That ground was in fact taken up as an additional ground in E.A. 290/92 as per E.A. 210/00. That application for amendment was allowed by the Court below on 29-10-2001 itself. It was not a ground which was not within the knowledge or could not have been taken by the first respondent before the order dated 6-4-02. It was a ground which was in fact taken by the first respondent earlier and was considered by the executing Court. The sale was not set aside on that ground.
14. It was subsequently taken as a ground for reviewing the earlier order by the successor Sub Judge holding that the absence of a judicial order settling the proclamation goes to the very root of the case and affects the jurisdiction of the executing Court to order sale. The order was reviewed and the sale was set aside. It is necessary to consider the provisions for sale of immovable properties in order to decide whether the finding of the Court below is correct. Order XXI, Rule 54 deals with attachment of immovable property. The property which was sold and purchased by the appellant is admittedly a property which was charged under the decree. Therefore no attachment was necessary as provided under Rule 54 in this case. Order XXI, Rule 64 of the Code provides that any Court executing the decree may order that any property attached by it and liable to sale or such portion thereof, as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. Order XXI, Rule 65 provides by whom and how a sale is to be conducted. Under the said Rule, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in that behalf and the sale shall be made by public auction in the manner prescribed. Rule 66 provides for proclamation of sale by public auction. Under Sub-rule (1), Court shall cause a proclamation of the intended sale to be made in the language of that Court. Sub-rule (2) provides that 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. It shall specify the revenue assessed upon the estate or part of the estate, any encumbrance to which the property, is liable, the amount for the recovery of which the sale is ordered and "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." The proviso to Sub-rule (2) mandates that nothing in the 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. The proviso to Sub-rule (3) mandates that the application for an order for sale shall be accompanied by a statement signed and verified in the manner prescribed for signing and verification of pleadings. Rule 67 provides the mode of publishing the proclamation of sale. Under Sub-rule (1), every proclamation shall be published in the manner prescribed by Rule 54, Sub-rule (2). Under Sub-rule (2) where the Court so directs, the proclamation shall also be published in the official gazette or in a local newspaper, or in both. Rule 68 provides the time of sale. Under the said Rule, no sale shall take place until after the expiration of at least fifteen days calculated from the date on which the copy of the proclamation has been affixed oh the Court house of the Judge ordering the sale, unless consent in writing of the judgment Debtor is obtained. Rule 69 provides for adjournment or stoppage of sale. Under Sub-rule (2) where a sale is adjourned for a longer period than thirty days a fresh proclamation under Rule 67 shall be made unless the judgment-debtor consents to waive it.
15. Rule 329 of Civil Rules of Practice deals with application for sale of attached properties and Rule 332 provides for application for sale of immovable property in general, Rule 333 provides for notice to judgment-debtor. Under the said Rule, once an application is filed in accordance with the Code and the Rules, for the sale of the immovable properties, the Court shall order notice to the judgment-debtor and other parties interested and fix a day for hearing of the application. Rule 334 provides for settlement of proclamation. Under the said Rule, at the adjourned date, the Court shall admit all such evidence as the parties shall be able to produce and after hearing them shall settle the proclamation of sale, determining the lots, if any, in which the property shall be sold, the market value of each lot, the manner of advertising the sale and the probable expenses thereof. Rule 337 deals with the order for sale. Under Sub-rule (1) of Rule 337, the proclamation of sale, when settled shall be signed by the Judge and an order for sale fixing the date, place and time of sale shall then be made. It provides that when the property to be sold is immovable property, the order for sale shall also state the date when the sale will come up before the Court for confirmation. Rule 343 deals with the conduct of sale and Rule 344 deals with the application to set aside the sale.
16. The argument of the learned Counsel appearing for the first respondent is that as found by the Court below, there was no judicial order passed by the executing Court settling the proclamation as provided under Rule 67 of the Code and it vitiate the sale as the executing Court will get jurisdiction to order sale only on settlement of proclamation. It was argued that Court below rightly found that there was no settlement of proclamation and that is a valid ground to set aside the sale and it was not properly considered in the order dated 6-4-2002 and it is a valid ground for review. It was also argued that the executing Court before ordering sale, did not consider whether the whole property is to be sold and whether a sale of part of the property is sufficient for realisation of the decree debt and the property was sold for only Rs. 25,000/- when on the date of the sale the property would fetch more than Rs. 1,25,000/- and therefore the sale is vitiated. It was also argued that even though Court is not bound to fix any upset price, it is mandatory that the Court shall show the value of the property claimed by the judgment-debtor, in the sale proclamation and as it was not done, there is material irregularity and it is a sufficient ground to set aside the sale.
17. True, the sale proclamation shows that the value of the property shown by the judgment-debtor in his objection to Rule 66 notice was not shown therein. What was contended by the first respondent in his objection to Rule 66 notice was that he has no saleable right or interest in the property as he had sold it to Sulabha. It was also contended that the value is not Rs. 25,000/- as claimed by the decree holder but exceeds Rs. 80,000/-. It is true that after the CPC amendment Act 104/76, the executing Court need not enter its own estimate of the value of the property directed to be sold by fixing an upset price in the sale proclamation. The second proviso to Sub-rule (2) of Rule 66 only provides that the proclamation shall include the estimate given by either or both of the parties. The failure to show the estimate claimed by the first respondent in the sale proclamation could be a material irregularity. But that by itself will not vitiate the sale. It cannot by itself be an illegality vitiating the sale. To set aside the sale for that irregularity, it is mandatory that the said irregularity resulted in substantial injury to the first respondent.
18. A Division Bench of this Court in Narayanan Nambudiripad v. Thommakutty had considered what constitute material irregularity as well as the distinction and meaning of irregularity and nullity. It was held that a sale held in contravention of the provisions of Rule 67(1) of Order XXI is not without jurisdiction and therefore it is not null and void. It is only where a Court, lacks inherent jurisdiction over the subject-matter of the proceeding or action in which an order is made that such order is wholly void with the result that order may be a nullity. It was held "that the violation to comply with the provisions of Rule 67(1) of Order XXI cannot nullify the proceedings but only make them irregular or illegal in a limited sense. Another Division Bench of this Court had considered the effect of non-compliance of the mandatory provision of Rule 72-A of Order 21 in Antony v. Catholic Syrian Bank . Relying on the decision of the Apex Court in Dhirendra Nath v. Subal Chandra AIR 1964 SC 1300 this Court held that no hard and fast line can be drawn between a nullity and an irregularity and an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceedings, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated. Therefore it was held that it is only an irregularity and that by itself is insufficient to set aside a sale, unless it resulted in substantial injury.
19. We have gone through the proceeding paper in the execution proceedings as well as '8' Diary relied on by the learned Sub Judge. It is seen that the relevant pages in the proceedings paper in E.P. 64/88 from 19-12-88 till 4-9-91 are not seen. The entries made in the 'B' Diary available to indicate what transpired on those posting dates. As is clear from the proceeding paper and the 'B' Diary, after objection to Rule 66 notice was filed by the first respondent contending that he had agreed to sell the property in favour of Sulabha and had received the entire consideration inclusive of the advance of Rs. 25,000/- and subsequent payment of Rs. 5000/-, executing Court overruled the objections and posted the case for settlement of proclamation. It is thereafter Sulabha filed E.A. 296/90 and got the case adjourned till the dismissal of the said E.A. on 23-11-1991. Sulabha had even challenged the order dismissing her petition under Rule 58 before this Court which was ultimately dismissed on 23-1-1998 much later. The proceeding paper and the 'B' Diary show that after the dismissal of E.A. 296/90, E.P. was posted to 21-1-1992 for proclamation of sale. On 21-1-1992 the Court directed proclamation and sale and posted to 9-3-1992. On that day the property was sold and purchased by the appellant. Eventhough it could be said that there was no specific order showing that the proclamation was settled and there was no order directing to show the estimate of the value of the property shown by the first respondent in the sale papers, it cannot be said that there was no settlement of proclamation. The particulars provided in Rule 67 of the Code are provided by the decree holder in the draft sale papers which was approved by the executing Court and directed its proclamation sale on 9-3-1992. It was thereafter the sale was effected. If at all, it could only be said that there was no specific order indicating that the proclamation was settled. But it is clear from the proceeding paper that the objection raised by the first respondent to the sale papers in answer to Rule 66 notice was considered and were overruled much earlier. Thereafter there was a specific order directing proclamation and sale to 9-3-1992. It is therefore clear that the proclamation was settled and sale was ordered. If at all, it could only be an irregularity which may be a ground available to set aside the sale. It cannot be said that the executing Court had no jurisdiction to order sale of the property as canvassed by the learned Counsel for respondent.
20. The legal position is now well-settled. By reason of any material irregularity either in publishing or conducting the sale, a sale cannot be set aside unless the applicant establishes that by reason of such irregularity, he sustained substantial injury. Apex Court in Ram Maurya v. Kailashnath , para 2 considered this aspect and held:
Even if we assume here for the sake of argument that there was material irregularity in conducting the sale of the property, we do not find any pleading by the objectors in their objections that on account of such material irregularity they were put to substantial injury.
It was held that in the absence of substantial injury, the sale cannot be set aside. As declared by the Apex Court in Jaswantlal Natwearlal Thakkar v. Sushilaben Manilal Dangar without showing that the irregularity resulted in substantial injury, no sale could be set aside on the ground of material irregularity. For the irregularity, substantial injury cannot be assumed or presumed. Apart from contending that the property was sold for a meagre amount, no evidence was let in by the first respondent to establish that there was any substantial injury. As rightly pointed out by the learned Counsel appearing for the appellant, it is to be born in mind that the case of first respondent himself was that he had already agreed to sell the property and received the entire consideration from Sulabha. In fact Sulabha had approached the executing Court claiming absolute right to the property and when her claim petition was rejected, it was even challenged before this Court, when the first respondent claims that he had already sold the property for Rs. 30,000/- and received the entire consideration, it cannot be said that by the sale of the property, he sustained any substantial injury as provided under Sub-rule (2) of Rule 90. Eventhough it was argued that the property would have fetched much more than for what it was sold it is to be born in mind that the sale was conducted in 1992. Moreover, Ext. B1 sale deed shows that first respondent himself has sold 1 cent of the property in 1988 of Rs. 500/-. Ext. C1 report shows that almost half of the property is a wet land lying lower in level compared to the dry land. The total extent of the property sold as is clear from Ext. C1 report is only the 25 cents and it was purchased by the appellant for Rs. 25,000/-. Considering the entire facts and circumstances, we find that there was no substantial injury sustained by first respondent due to the alleged irregularity in conducting the sale. The sale cannot be set aside.
21. Under Rule 90 of Order XXI of the Code, the Court is not justified in ordering review of the previous order dated 6-4-2002 and directing setting aside the sale without considering the question of substantial injury sustained to first respondent which is mandatory under Sub-rule (2) of Rule 90 of the Code. The impugned order is therefore set aside. Consequently, the order setting aside the sale passed by the Court below in E.A. 290/92 is also unsustainable and is to be set aside.
The Appeal is allowed. The order passed by the Court below in E.A. 147/02 is set aside. E.A. 147/02 stands dismissed. Consequently the order in E.A. 290/92 dated 6-4-2002 is restored. The Court below is directed to proceed with the execution in E.P. 64/88 in accordance with law.