JUDGMENT
D.Y. Chandrachud, J.
1. Regular Civil Suit No. 169 of 1974 was instituted by the applicant, who is the Decree-holder, for the recovery of an amount of Rs. 1,960.40. The suit came to be decreed on 21-9-1974. The applicant thereafter took out execution proceedings in the form of Regular Darkhast No. 98 of 1984. On 19-9-1984 summons in the execution proceedings came to be served on the respondent, who was the judgment-debtor. A warrant of attachment in pursuance thereof was issued on 4-4-1985 and the warrant of attachment was served on the judgment-debtor on 10-6-1985. On 5-11-1985 the sale proclamation under Order XXI, Rule 66 of the Code of Civil Procedure came to be settled and it is common ground that the judgment-debtor was present through his advocate, Mr. Nikus. On 19-12-1985, since the warrant in pursuance of the sale proclamation had not been served on the judgment-debtor, a fresh date was granted by the Executing Court. On 11-2-1986 when the matter came up before the Executing Court the judgment-debtor was served and had appeared through his Advocate and a fresh sale schedule was accordingly fixed and the sale proclamation at Ex. 18 came to be issued. The sale, in pursuance of the execution proceedings, took place on 2-5-1986 and the decree-holder, the applicant herein purchased the property at and for a consideration of Rs. 3,000/-. Thereafter, it is common ground, the objections under Order XXI, Rule 58 were filed by wife and the sons of the judgment-debtor, but these were rejected. Almost five years after the sale took place, on 11-4-1991 the judgment-debtor, the respondent herein, deposited before the Executing Court the decretal dues of Rs. 2,200/- and on 20-4-1991 he further deposited an amount of Rs. 245/- on account of costs of execution and poundage fee. On 26-4-1991 an application was filed by the respondent under Order XXI, Rule 89 of the Code of Civil Procedure for depositing the amount. On 29-4-1991 the respondent thereafter filed an application at Ex. 50 for setting aside the sale. The learned counsel for the respondent has stated that this was presumably under Order XXI, Rule 90, since the basis of that application was that there was material irregularity and fraud in the conduct of the sale. The application was dismissed on 20-8-1993 by the Executing Court, which held that there was no objection in accordance with Rules 89, 90 and 91 of Order XXI. The sale was confirmed and the sale certificate was directed to be issued in the name of the applicant in respect of the land which was put to auction. The respondent appealed against the order of the Executing Court and by the impugned order of the learned Additional District Judge passed on 30-6-1995 the appeal came to be allowed and the order of the Executing Court confirming the sale was quashed and set aside.
2. The learned Additional District Judge, by the impugned order dated 30-6-1995, has set aside the auction sale on the ground that in the sale proclamation issued by the Executing Court the existence of a well and mango trees in the suit property had not been mentioned. The learned Additional District Judge was of the view that this would augment the price of the land. The principal defence to the objection of the respondent that was urged before the learned Additional District Judge by the applicant was that the application which was filed by the respondent on 29-4-1991 was clearly beyond the period of limitation. This was answered by the Appellate Court holding that the son of the respondent had filed an application in the year 1989 raising the same plea and since the application, which was filed by the respondent, was before the confirmation of the sale, the question of limitation was not involved. Besides, in the view of the learned Additional District Judge the application which was moved by the respondent could well be treated as an application under Order XXI, Rule 90 of the Code of Civil Procedure for setting aside the sale. These are the reasons which have weighed with the learned Additional District Judge.
3. In assailing the correctness of the view, which has been taken by the learned Additional District Judge, the learned counsel appearing on behalf of the applicant has urged that under Article 127 of the Schedule to the Limitation Act, the period of limitation for moving an application for setting aside the sale in the course of execution is sixty days. The application which was filed on behalf of the respondent on 29-4-1991, after a lapse of five years from the date of sale which took place on 2-5-1986, it was submitted, was beyond limitation. Secondly, it was urged that under Order XI, Rule 66, notice is required to be issued to the Decree-holder and the Judgment-debtor before the sale proclamation is finalised, that notice was issued and the respondent appeared throughout through an advocate. At no stage was an objection to the sale proclamation raised on the ground that there was no mention of the well ore of mango trees. Reliance was placed on the provisions of Order XXI, Rule 90(3) for submitting that an objection which could have been raised by the respondent on or before the issuance of the proclamation should not be used to sustain a challenge to the sale when the objection was not raised at the appropriate time when the sale proclamation was finalised under Order XXI, Rule 66 of the Code of Civil Procedure.
3-A. On behalf of the respondent, on the other hand, the order of the learned Additional District Judge was sought to be sustained. The learned counsel to the respondent urged that the application under Order XXI, Rule 90 of the Code of Civil Procedure ought to have been disposed of before the sale was confirmed and reliance was placed, inter alia, on the judgment of a learned Single Judge (Ratnam, J.) of the Madras High Court in the case of Ramakrishna Reddiar and Ors. v. Pichammal and Ors. reported in AIR 1981 Madras 83. Reliance was also placed on the decision of the Supreme Court in Gajadhar Prasad and Ors. v. Babu Bhakta Ratan and Ors. in which it has been observed that the essential facts which have a bearing on the very material question of the value of the property and which would assist the purchaser in forming his own opinion must be stated.
4. In considering the rival submissions, it would be necessary to notice at the outset that under Order XXI, Rule 90 of the Code of Civil Procedure, 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 interests 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. Under Sub-rule (3) of Rule 90, it has been provided that no application to set aside a sale under this 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. In the recent judgment of the Supreme Court in Kadiyala Rama Rao v. Gutala Kahna Rao (Dead) by Lrs. and Ors. reported in (2000) 3 SCC 87 the Supreme Court held that three factors have to be taken note of when an application is moved under Order XXI, Rule 90 of the Code of Civil Procedure for setting aside the sale of an immovable property in the course of execution –
(i) existence of material irregularity and fraud in publishing or conducting the sale; (ii) the Court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and (iii) no application would be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale. The Supreme Court held that the third requirement deserves special mention by reason of the factum of incorporation of principles analogous to the doctrine of constructive res judicata as envisaged under Section 11 of the Code of Civil Procedure. The legislative intent is clear and categorical in both the provisions, in that in the event of an intentional relinquishment of a known right, the question of proceeding further would not arise.
5. In the present case, it would be also necessary to refer to the provisions of Order XXI, Rule 66. Under Sub-rule (1) of Rule 66, 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. Under Sub-rule (2) it is provided 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. The object of the notice is to furnish due opportunity both to the decree-holder and the judgment-debtor to participate in the process of the drawing up of a sale proclamation. The proviso to Sub-rule (2) lays down 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 Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs. The object of the notice is to ensure that both the judgment-debtor and the decree-holder are given a due and proper opportunity in the process of drawing up and settling the terms of the proclamation. In the present case, it is not a matter of dispute that the respondent was at all the stages given due notice in the course of the execution proceedings. The summons was served on 19-9-1984; warrant of attachment was served on 10-6-1985 and when the sale proclamation was settled on 5-11-1985 the judgment-debtor was present through an advocate. Thereafter, even the warrant was served on the judgment-debtor and it was on 11-2-1986 that Ex. 18, the sale proclamation, was drawn up in the presence of the parties including the judgment-debtor, who was appearing in the proceeding through an advocate. Any objection which the judgment-debtor then had to the proclamation of the sale including the failure to state the existence of a well and mango trees, ought to have been placed before the Executing Court at that stage. Having failed to do so, the judgment-debtor is clearly prohibited from raising that objection as a ground constituting a material irregularity in the conduct of the sale by virtue of the provisions of Order XXI, Rule 90(3).
6. Even apart from this consideration, the application which was filed under Order XXI, Rule 90 was clearly beyond the period of limitation. The limitation which has been prescribed under Article 127 of the Schedule to the Limitation Act, 1963, is sixty days. Time begins to run from the date of sale. The learned Additional District Judge was clearly not correct in holding that since the sale was yet to be confirmed the period of limitation would not begin. The provisions of Order XXI, Rule 92 would show that the sale is required to be confirmed when no application is made under Rules 89, 90 or 91, or where such application is made and disallowed. Therefore, clearly the process of moving an application under Order XXI, Rule 90 has to precede the confirmation of the sale. The period of limitation that is prescribed by Article 127 of the Schedule to the Limitation Act must, therefore, operate once the sale has taken place and in the present case the sale was concluded on 2-5-1986. The application was, therefore, clearly beyond the period of limitation.
7. The learned Additional District Judge had found some reason for condonation on the ground that the application filed by the son of the judgment-debtor was pending. In that regard, it would be well to refer to the provisions of
Section 5 of the Limitation Act which expressly provides that any appeal or any application, other than an application under any of the provision of Order XXI of Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period and, therefore, the provisions of section 5 of the Limitation Act are not attracted to an application under Order XXI.
8. On behalf of the respondent, reliance was sought to be placed on the Judgment 6f a learned Single Judge of the Madras High Court reported in AIR 1981 Madras 83, supra. The learned Single Judge there held that the confirmation of sale under Order XXI, Rule 92 can only be made after the application made by the judgment-debtor to set aside the sale is disallowed. Where the sale is confirmed without considering the application for setting aside the sale, the order is illegal. This judgment would not have any application in the facts of this case for the simple reason that in the matter before the Madras High Court the application for setting aside the sale was clearly made within the period of limitation. The sale took place on 7-12-1979 and the application to set aside the sale was moved on 7-1-1980. Thereafter, certain defects had been noticed in the application and after rectification of those defects the application came to be presented again on 21-1-1980. These circumstances have been expressly adverted to in paragraph 2 of the judgment of the learned Single Judge. There can be no doubt about the proposition of law as laid down in , supra, that the essential facts which have a bearing on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. The point, however, in the present case is that the objection which was filed by the respondent was clearly not within the period of limitation and it is also barred by the provisions of Sub-rule (3) of Rule 90. Besides, the Executing Court had dealt with the application filed by the respondent before confirming the sale.
9. In the circumstances, I am of the view that the learned Additional District Judge has clearly acted with illegality within the meaning of the expression in Section 115 of the Code of Civil Procedure which would warrant interference of this Court in the exercise of the revisional jurisdiction. The order which has been passed by the learned Additional District Judge, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the applicant. In the. circumstances, the impugned order of the learned additional District Judge dated 30-6-1995 is quashed and set aside. The order passed by the Executing Court on 20-8-1993 is accordingly confirmed. The Civil Revision Application is accordingly allowed in these terms.