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Judgment
V. Ramaswami, J.—This Letters Patent appeal arises out of execution proceedings. The first respondent-plaintiff filed the suit O.S.185 of
1971 on the file of the Subordinate Judge, Coimbatore, for the recovery of Rs. 16,000 and obtained a decree for a sum of Rs. 24,195.14
including interest. After giving a credit to a sum of Rs. 16,711.25 paid by the judgment debtor, execution petition was filed on 11-8-1977 for
execution of the decree by sale for recovery of a sum of Rs. 16,322.71. The decree-holder prayed for the sale of the cinema theatre known as
''Soundaram Theatres'' situate in S. No. 112/1B Perur Chettipalayam village, Coimbatore District., with all superstructures, doors, windows, and
amenities, projector, rectifier, transformer and amplifiers, complete in running condition. The sale proclamation was settled giving the Amin''s
valuation at Rs. 96,500; decree holder''s valuation at Rs. 10,000, and the judgment debtor''s valuation at Rs. 7,00,000, subject to encumbrance of
Rs. 50,000, due under a mortgage. The upset price was fixed at Rs. 50,000, subject to the encumbrance. By an order dated 6-1-1978, the
learned Subordinate Judge directed proclamation and sale of the property to be held on 8-3-1978. E.P. No. 556 of 1977 was adjourned to 13-3-
1978. Proclamation was settled and on 1-3-1978, batta was paid by the decree holder for issue of the sale warrant to the plaintiff to hold the
auction sale on 8-3-1978. The sale warrant was given to the bailiff on 6-3-1978 with a direction to hold the sale on 8-3-1978 and return the
warrant by 13-3-1978. It appears that on 8-3-1978. there was N.G.O. strike and therefore, though there were a few bidders, no sale was held
and the Bailiff returned the warrant on 13-3-1978, without effecting the sale on 8-3-1978. It is stated that the judgment debtor filed an application
on 13-3-1978 to fix a fresh date for sale giving a long date; but that petition was rejected. Thereafter, the learned Subordinate Judge suo motu''
''adjourned the sale'' to 15-3-1978, and adjourned the E.P. to 23-3-1978. On 15-3-1978, the property was sold and the second respondent was
the successful bidder, his bid being Rs. 1,50,000 subject to the mortgage. On 22-6-1978, when the E.P. was called, the sale was confirmed. In
the meantime on 16-4-1978, the appellant herein (judgment debtor) filed E.A. No. 702 of 1979 in E.P. No. 556 of 1977 in O.S. No. 185 of
1971, praying for setting aside the sale held on 15-3-1978, on various grounds mentioned therein and this petition was filed under Order 21, Rule
90, C.P.C. Even earlier than that, on 27-3-1978, he filed I.A.700 of 1978 praying for the same relief; but that petition was filed u/s 47 read with
Section 151, C.P.C. Both those petitions were heard together and by an order dated 3-3-1982, the petitions were dismissed. As against the order
in E.A. No. 702 of 1979 C.M.A. No. 53 of 1982 was filed on the file of the District Court, Coimbatore and as against the order in I.A. No. 700
of 1978. C.R.P. No. 1113 of 1982 was filed in this Court. Since the C.M.A. and the C.R.P. related to the same subject matter C.M.A. No. 53 of
1982 on the file of the District Court, Coimbatore, was with heard with C.R.P. No. 1113 of 1982. C.M.A. No. 53 of 1982 was renumbered as
C.M.A. No. 715 of 1983 on the file of this Court. Both the appeal and the revision were dismissed. It is stated that as against the order in revision,
an appeal in the Supreme Court is pending. As against the order in C.M.A. the present L.P. Appeal is filed.
The main contention of the learned Counsel for the appellant is that the court had no jurisdiction to ''adjourn the sale'' and hold it on 15-3-1978,
and that the Court could have only directed a fresh proclamation and fresh re-issue of warrant after fixing a fresh date for sale. That not having
been done, the sale itself was void and illegal. The facts relating to this appeal are, as stated earlier, that batta was paid on 1-3-1978 for issue of
sale warrant to the Bailiff on 6-3-1978 with a direction to hold the sale on 8.3.1978 and return the warrant by 13-3-1978. According to the
learned Counsel for the appellant, when the sale was not completed on 8-3-1978 and the bailiff himself having not adjourned the sale on that date
the warrant has been exhausted and the bailiff has become functus officio except to return the warrant unexecuted to the court and on such return
of the warrant, the court will have to reproclaim and issue a fresh date for sale and with reference to that date, a warrant to the bailiff will have to
be issued to hold the sale on that date and for issue of such warrant, fresh batta also will have to be paid. The rule relating to adjournment of sales
in execution is Rule 69 of Order 21, C.P.C. The rule reads as follows:
Adjournment or stoppage of sale: (1) 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;
Provided that, where the sale is made in, or within the precincts of the court house, no such adjournments shall be made without the leave of the
court.
(2) Where a sale is adjourned under Sub-rule (1) for a longer period than thirty days a fresh proclamation under Rule 67 shall be made, unless the
judgment debtor consents to waive it.
(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the cost of the sale) are tendered to the officer
conducting the sale or proof is given to his satisfaction that the amount of such debt and costs has been paid into the court which ordered the sale.
It may be seen from this provision that both the court and the Officer conducting the sale may in their discretion adjourn the sale recording the
reasons for such adjournment. The contention of the learned Counsel for the appellant is that the power of adjournment is available and could be
exercised by the Officer concerned either before the sale was held or on the date of the sale when the sale could not be completed and that
therefore the same construction will have to be given to the power of the court also to adjourn, namely that the power to adjourn is available only
prior to the date of the sale or on the date of sale if the sale is held in the presence of the court and not after the date of the sale is fixed. We think
that there is substance in this contention of the learned Counsel. The word ''adjournment'' can only relate to the matter which is to be done and
could not be done and that could be with reference to the sale; either before the sale is held or on the date when the sale is to be held or on the
date when the sale is not held, the question of adjourning the sale would not arise after the event had passed. It is not as if the court had no power
to fix a fresh date for sale after the date of the sale is over; but that is to be done following certain procedure. A learned single Judge of the
Allahabad High Court has considered a similar question in the decision reported in Firm Bindeshri Prasad Bhola Nath and Others Vs. Raja Ram
and Another, In that case the sale was fixed to be held on 6-1-1957 and the sale proclamation was also issued for this particular date. 6-1-1957
happened to be a Sunday and therefore the sale was not held, and the Amin, who was the sale officer, reported to the learned Civil Judge that the
sale could not be held owing to 6-1-1957 being a Sunday and requested that some other date might be fixed. On the following day, namely, on 8-
1-1957 the learned Civil Judge made an order fixing 9-1-1957 as the date which the sale will be held. The question for consideration was, whether
the court had power under Rule 69 to adjourn the sale in that form to 9.1.1957. Holding to adjourn a sale, really means that an appointed sale is
deferred or postponed to a later date, the sale was set aside. It is worthwhile, however, to extract the reasoning of the learned Judge in coming to
the conclusion which is contained in paragraphs 8 and 9 and they read as follows:
(8) The authority of a court to adjourn a sale is indeed assured by the above provision. But the question which readily arises in the present case is
whether the order appointing the sale to take place on 9-1-1957 we have noticed that this order was made on 8-1-1957 can be held to be a order
adjourning the sale. To adjourn a sale really means that an appointed sale is deferred or postponed to a later date. The rule requires that while
adjourning a sale the adjourned date and time shall be specified. It further says that where the sale is adjourned by the sales officer and the sale is
to place within the precincts of the Court, the sales officer shall do so with the leave of the court. The intention is clear that the adjournment, and
that is implicit in the word adjourn, also, must be ordered before the occasion, namely, the appointed sale has arrived or at least is over.
In any case, where the occasion is allowed to lapse, since there is no longer anything to be postponed or deferred, adjournment is out of question.
It is implicit in adjournment that the postponement or deferring of the sale is ordered before the time etc. previously appointed in that behalf is over.
It is then only that it is deferred to a future date and time.
(9) In the instant case, no order deferring the sale to 9-1-1957 was made on or before the 6th January either by the court or by the sales officer.
On the other hand what actually happened was that the Amin put up a report on 7-1-1957 a day later moving the court to appoint some date for
sale. Beyond taking the above step, the Amin took no steps at the spot on 6-1-1957, nor adjourned-the sale on that date.
It was on 8-1-1957, that the Court made an order fixing 9-1-1957 for the taking place of sale. This order which was made on 8-1-1957 cannot
be construed to be an order adjourning the sale. It was virtually an order appointing a fresh date for sale i.e., 9-1-1957. There was thus no
adjournment of the sale notified on 6-1-1957, indeed this could not be done on 8-1-1957.
We are in entire agreement with the reasoning of the learned Judge. In this case also admittedly no fresh sale proclamation or no re-issue of
warrant was made after getting any fresh batta and that the batta paid on 1-3-1978 has been exhausted by the execution of the sale on 8-3-1978.
The adjournment of the sale to 15-3-1978 in the circumstances, was without jurisdiction. In this connection we may also usefully refer to a Division
Bench decision of this Court reported in Kalyani Achi Vs. K.N.S.P.R.M. Ramanatham Chettiar and Others, In that case, the sale was to be held
on 17th June, 1952 within the precincts of the court hall. The sale officer commenced the sale on 17th June, 1952; continued on 18th 19th, 20th
and 23rd June, 1952 and on 25th there were two bidders. For adjourning the sale, the permission of the Court was not obtained and therefore it
was contended that the sale was ultra vires and invalid. While considering this question, the learned Judges observed:
But the difficulty in the present case arises from the fact that the sale warrant directs the officer conducting the sale to hold it on 17th June 1952.
Therefore ordinarily he would have had no right to adjourn the sale without the leave of the Court under the proviso to Order 21, Rule 69, C.P.C.
But, in the circumstances of the case as laid down in the decisions already referred to, there was no adjournment but a continuation of the sale. It
might reasonably be said that such a continuation does not tantamount to any adjournment. But the sale warrant contains a positive direction that
the same should be returned on or before the 23rd June, 1952. Granting that the continuation of the sale on 18th, 19th and 20th would not amount
to adjournment, still it was incumbent upon the selling officer to return the warrant on or before the 23rd June, 1952. On the evening of the 22nd
June, 1952, the selling officer become functus officio so far as the sale proceedings are concerned and if the sale is not completed on the evening of
22nd he has to give his reasons and make a statement that the same had not been furnished and return the warrant on the 23rd.
A proper interpretation of the sale warrant is that it is not open to the selling officer to hold the sale on any day subsequent to the 22-6-1952. His
power to sell the same gets terminated by efflux of time on 22nd June, 1952. In such circumstances, the sale held on 25th June, 1952 is without
jurisdiction.
It may be seen from this that the ratio of this judgment is directly applicable to the facts of this case, and therefore, when the sale could not be
completed on 8-3-1978, the bailiff becomes functus officio and the Court can fix a fresh date after following the procedure and not adjourn the
sale fixed for 8-3-1978.
It was, however, contended by the learned Counsel for the auction purchaser, that, at best, this could be an irregularity and that unless the
judgment debtor proves substantial injury, the sale itself could not be set aside. In this connection, he contended that at no time the judgment
debtor asserted or proved that the sale was for a low price or that by reason of that he had suffered. He was at pains to show us in the affidavit
filed in support of the application for setting aside the sale nor in any other record there is any direct averment to the effect that the property was
sold for a low price and therefore, there was substantial injury caused to the judgment debtor. For one thing, as we have held earlier the
adjournment of the sale on 13-3-1978 was not a mere irregularity; but it is an illegality in the sense that the court had no jurisdiction to adjourn the
sale and the bailiff also had become functus officio after the sale warrant executed by him on 8-3-1978 had become exhausted. However, for the
purpose of completeness we may observe that we could not entirely agree with the learned Counsel for the auction purchaser. Though the
affidavits filed in support of the application for setting aside the sale and the one filed u/s 47, C.P.C., did not say that the sale price realised was
lower than the market value, there is an allegation that even on 15-3-1978 there was a doubt about the real holding of the sale in view of the
indefiniteness of the N.G.O. strike that the persons really interested in the purchase of the property and who could purchase for proper price could
not come and take part in the auction and thereby the sale was affected. In Tamil, this is what we see relating the allegation (SIC) which can be
translated as follows:
Since it was stated that the auction would not take place till the last, persons who could purchase for proper price were unable to participate in the
auction.
This allegation was understood by the Subordinate Judge that the auction was held for a low price, as seen from the first paragraph of the order.
But, however, he rejected that contention on the ground that no witnesses have been examined and no documents have been produced to show
that the price fixed was low. On this question, the learned Counsel for the appellant strenuously contended that on 2-3-1982, when the
applications were taken up for hearing, the counsel appearing for the judgment debtor filed three memos praying for adjournment-(1) on the
ground that he wants to cite the authority in Firm Bindeshri Prasad Bhola Nath and Others Vs. Raja Ram and Another, which was not readily
available; (2) for examining witness; and (3) for filing documents. There is no reference to the three memos in the order of the Subordinate Judge.
When the matter came up for disposal in appeal, C.M.P. No. 2938 of 1986 was filed in this Court for taking additional evidence relating to these
three memos and he also filed an affidavit in support of the same by the counsel who appeared in the execution proceedings for the judgment
debtor. That petition was dismissed on the ground that though the appellant had enough opportunity, he did not file the same earlier and that the
memos were not found in the bundle. Be that as it may; but what is relevant is that he has been contending that he did not have the opportunity to
let in evidence to show that the property was sold for a low price because of the irregularity in the conduct of the sale by not giving due publicity
and inviting persons who would afford proper price for the property. It is not possible to state that the judgment debtor had not suffered any
substantial loss by reasons of this irregularity. Actually as already stated, the execution petition itself was filed for recovery of Rs. 16,322.71, but
the property sought to be sold is a cinema theatre which even according to the bailiff was Rs. one lakh and more and according to the judgment
debtor as seen from the proclamation of sale Rs. seven lakhs. There were Projectors, Rectifier, Transformer and Amplifier and in some places it is
also mentioned about furniture. Whether these articles separately could not have been sold to realised the small amount of Rs. 16,000 is also to be
taken into consideration in considering whether the judgment debtor could have suffered substantial injury in this case. We are satisfied that even if
the holding of the sale on 15-3-1978 is merely an irregularity the injury caused was so substantial which calls for interference by setting aside the
sale. As already stated, the consideration of this question does not in way affect our earlier view that fixing the date 15-3-1978 in the
circumstances was without jurisdiction.
In the result, the appeal is allowed and the orders of the courts below are set aside and the sale is also set aside. However, it is made clear that
E.P. No. 556 of 1977 in O.S. No. 185 of 1971 on the file of the Subordinate Judge, Coimbatore, shall be deemed to be still pending for the
purpose of further execution of the decree it if is necessary. There will be no order as to costs.