T.V. Tuljaram Row vs T.A. Ramachandra Row

John Wallis, C.J.—This is an appeal from an order of the learned Judge on the Original Side refusing to set aside a sale by the Official

Referee under the orders of the Court made in a partnership suit for the purpose of realising the partnership assets and the main ground of

objection taken is that there was no place of sale mentiened in the proclamation of sale.

In Order 24A of the Original Side Rules which provides for proceedings before the Official Referee, under the head of sales by the Official

Referee it is provided that, unless otherwise ordered, all sales by the Official Referee shall be by public auction, and in cases of Immovable

property, shall be held at the premises. Under that rule, even though the property to be sold includes movables as well as immovables the sale must

be held at the premises when the properties are sold as one lot. Even in such cases the duty of bringing in the sale proclamation falls upon the party

who has the conduct of the sale. Unfortunately in this case, a printed form of sale proclamation for a sale in execution of a decree was used which

for some reason or other does not strictly follow the form given in form No. 28 in the Original Side Rules but omits the place of sale. Possibly this

printed form comes from the office of the Official Referee by whom a great number of sales are conducted, and having regard to the rule I have

just referred to, the name of the place of sale, is not mentioned because everybody is assumed to know it. If that is so, it is a distinct defect and the

sooner this form of sale proclamation is altered so as to state the place at which the sale is to be held the better. But the question in this case is

whether it is open to the defendant at this''stage to object to fhe sale on this ground''and whether a material irregularity has been shown by which he

was prejudiced so as to justify the court in setting aside the sale under O. XXI, Rule 90 or at any rate in accordance with the principles prescribed

by that rule.

Under Rule 203 of the Original Side rules the order for sale is to direct the applicant to bring into Court a proclamation of sale for the approval

of the Registrar and he is to adjourn the cases to come on before the Judge in Chambers on a fixed day. Then under Rule 205, the applicant is to

bring in two copies of the proclamation of sale inform No. 27 or No. 28. Both these forms do contain the name of the place of sale. Then the

Registrar, under Rule 206, is to determine the manner of advertising and to fix the date and place of the sale. Under Rule 208 copies of the

proclamation approved by the Registrar are ,to be signed by him and the case is to be posted on the adjourned date before the judge in chambers

who may then order the sale to proceed or make any such order as he thinks fit. That is the time when it is open to the parties to take any

objection whatever the proclamation of sale. Under Rule 206, it is only then that they can take any objections to the lots, the market value or the

reserved price mentioned in the affidavit of the applicant; but they canalso before the Judge in chambers equally take objection to such a manifest

slip as the omission of the place of sale. No such objection was taken in this case although numerous other objections were urged including

objections as to the manner in which the sale has been advertised. The reasons stated as to why no such objections were raised is because

everyone understood that, following the practice prescribed by the rules for Uie Original Side, the sale being by the Official Referee, it would be at

the premisess which were described for sale in the sale proclamation. It is not necessary foj the purpose of the present case to consider whether

the appellant should be held absolutely barred from taking this objection to the absence of the mention of the place of sale in the proclamation

because he did not take it before the Judge in chambers as he ought.

The decision of the Privy Council in Arunackalam v. Arunachalam I.L.R.(1888) Mad. 19 relates to an alleged insufficiency in the description of

the property to be sold as distinguished from the'' present objection to the absence of a''ny place of sale in the proclamation. In that case, the Privy

Council held that the failure to take the objection at the proper time prevented its being taken later as a ground for setting aside the sale. "" It would

be very difficult indeed"", their Lordships say, ""to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-

debtor could lie by and afterwards take advantage of any misdescription of the property attached and about to be sold which he knew well but of

which the execution creditor or the decree-holder might be perfectly ignorant that they should take no notice of that, allow the sale to proceed, and

then come forward and say the whole proceedings were vitiated. That, in their Lordships'' opinion, cannot be allowed, and on that ground the High

Court ought not to have given effect to this objection."" In the present case we think all that happened merely amounted to an irregularity by which

the appellant was not prejudiced. It appears from the affidavit, and is found by the learned Judge that this formal defect misled no body.

I may further say here that the handbills which have been exhibited do not contain the place of sale and the only inference which anyone with

ordinary common sense would come to is that the sale wa''s to be at the premises because no other premises was stated where the sale was to be.

As the learned Judge has pointed out the sale was well attended and there is no reason to suppose that any possible bidder was left away. It was

not a sale likely to draw a very large number of bidders because although no doubt the properties to be sold included desirable premises near the

Popham''s Broadway, yet the sale, proclamation showed that they were subject to incura-brances of an unusual kind, and of such a nature as

would possibly require litigation in order to ascertain their amount. Further the plaintiff''s counter-affidavit states that, when objection was taken

during the sale ""by Mr. Ramachandrier to the fact that the place of sale was not mentioned in the proclamation the vakil on the other side ran over

to the Official Referee''s room which is the only other place where the sale could possibly take place and also to the press close by in the High

Court premises and found nobody to bid. Therefore there is no reason to differ from the learned Judge when he says that what happened was an

irregularity which did not prejudice the parties. It is quite different from some of those cases which have been cited and where the sale was ordered

to be held at one place and was actually held at another place, or where the sale was ordered to be held at one hour and was actually held at

another hour. These errors were calculated to seriously mislead possible bidders. In the present case the actual place no doubt was not mentioned

as it ought to have been by a slip, but that non-mention in our opinion is not calculated to mislead anybody. There was the well-known practice in

regard to sales by the Official Referee and in the absence of any mention as to the place of sale, the natural inference would be that the sale was to

take place at the premises and if any one had felt any doubt about it and enquired, he would at once have been told so. There is also evidence that

people came to the Official Referee''s and enquired whether there were any copies of the proclamation of sale to be obtained at ''Popham''s

house,'' Anna Pillai Street, the main premises for sale, which goes to show that they knew perfectly well that the sale was going to take place there.

We hold therefore agreeing with the Lower Court that in this case there was no material irregularity which would justify us in setting aside the

sale under Rule 90 or the principles embodied in that rule.

Another objection has been taken that the Official Referee refused to adjourn the sale at about 5-30 P. M. when called upon to do so on the

ground that it was getting dark. In the first place we do not think that it was getting dark at about 5-30 P. M. on the 28th February. When I

pointed out that according to our ordinary experience, it does not get dark at 5-30 P. M. on the 28th February it was alleged that was a very dark

place but that is an objection which would apgly equally to earlier portions of the day. This objection appears to us to be of a very frivolous

character ""and to have been rightly rejected by the learned Judge.

Another objection was taken that the appellant was entitled under the express terms of Order 21, Rule 89 of the CPC to come in to set aside

the sale on a deposit of the purchase-money plus 5 per cent. This rule appears to have no application to the circumstances of the present sale

which is for the realisation of partnership assets in a partnership suit.

Rule 89, which is old Section 310A, provides, as has been recently held by the Full Bench, modes of relieving judgment-debtors from the

hardships to which they are exposed by Court-sale in execution of decrees against them at great under-values. The rule says. "" Where Immovable

property has been sold in execution of a decree any person owning such property or holding an interest therein by virtue of a title acquired before

such sale may apply to have the sale set aside on his depositing in court a sum equal to 5 per cent, of the purchaser-money and for payment to the

decree-holder the amount specified in ihe proclamation of sale as that for the recovery of which the sale was ordered."" The sale is obviously

inapplicable to a case of sale on behalf of all parties to the suit fftr the purpose of realisation.

Then we are referred to Rule 214 of the Original Side Rules which provides that an application u/s 310 (a) which corresponds to the present

Order 21 Rule 89 shall be made on Judge''s summons supported by affidavit which shall set forth the objections to the sale or the confirmation

thereof. That rule applies of course only to cases to which Rule 89 of Order 21 is applicable and we are clearly of opinion that Rule 89 is not

applicable to the circumstances of the present case.

The result is that the appeal fails and is dismissed with costs.

Krishnan, J

I agree.