JUDGMENT
H.K. Chaudhuri, J.
1. The question for determination in this appeal is whether a certain execution sale held on 20-12-54 in the court of the Subordinate Judge of Gaya is valid. The validity of the sale is attacked by the appellants on the ground that although according to the sale proclamation the date of sale fixed was 5-12-1954 it was actually held on 20-12-54 that is to say, beyond 14 days from the date fixed. It is urged that the sale having been held in contravention of Order 21, Rule 69, Sub-rule (2) of the Code of Civil Procedure was illegal.
2. The facts are these. The sale was advertised for 5-12-54. As that date was a Sunday the execution case was put up on the next day. On that day the Court below adjourned the sale to 11-12-1954. On 11-12-54 the Court again adjourned the sale to 18-12-54 on judgment-debtors’ petition for time. On 18-12-54 the property was put up to sale and the decree-holders bid came to Rs. 10,000/-. On the Nazir’s report that the bid was not sufficient to satisfy the decree and was below the valuation fixed the Court ordered as follows:
“……Try again on 20-12-54 (tomorrow being
Sunday) for sale at 12 noon. D. Hrs.’ petition for the purchase of the poundage fee to be kept on records.”
3. On 20-12-54 the judgment-debtors appeared and objected to the sale being held on that day, which was beyond 14 days from the date originally advertised for sale. The learned Subordinate Judge overruled this objection ‘and the sale was held and knocked down in favour of the decree-holders on that day for Rs. 8,000/-. Another property was also sold on the same day but we are not concerned with it. It would be noticed that although the decree-holders had bid to the extent of Rs. 10,000/-on 18-12-54 the property was actually knocked down in favour of the decree-holders for Rs. 8,000/-only on 20-12-54.
Thereafter the judgment-debtors filed an application under Order 21, Rule 90 of the Code For setting aside the sale on the ground of material irregularity. The point taken was that the sale having been held in contravention of Sub-rule (2) of Rule 69 of Order 21 was illegal. Relying upon the case of Murlidhar Khetan v. Nawab Saivid Muhammad, 104 Ind Cas 215: (AIR 1927 Pat 512) (A) which is a case of our own High Court, the learned Judge however held that the sale was valid. His finding was as follows:
“Order No. 150 dated 18-12-54 shows that on the Nazir’s report regarding the bids being inadequate it was ordered ‘try again on 20-12-54 (tomorrow being Sunday) for sale at 12 noon’. This order proves beyond any shadow of doubt that it was a continuation of the sale and not an adjournment. Hence there was no merit in the objection.”
4. The learned Advocate General appearing for the appellant has urged that the learned Subordinate Judge has not properly appreciated the observations of their Lordships in 104 Ind Cas 215: (AIR 1927 Pat 312) (A). He points out that in the reported case the finding was that the property had been, kept on hammer from 16th of January, to 28th of January, on which latter date the bid of the decree-holder was accepted. Reliance is placed on the following observations of their Lordships :
“On none of those dates did the bidding start afresh from the beginning, only an attempt was made to obtain some bid higher than the Rs. 25,000/- bid by the decree-holder. It was a continuous sale and the provisions of Sub-rule (2) of Rule 69 of Order XXI do not apply”.
5. It is contended that in the present case
the sale which took place on 20-12-54 was a fresh sale altogether and not a continuous sale and there
was therefore a contravention of Sub-rule (2) Order 21, Rule 69.
6. In my opinion, the contention is well-founded and must prevail. As I have already pointed out, the decree-holders’ bid on 18-12-54 was Rs. 10,000/- This bid was found by the learned Subordinate Judge to be inadequate and he passed an order “try again” meaning thereby that a further attempt should be made for higher bid on the following day. The next day was a Sunday and the sale was taken up on 20-12-54. The bid sheet does not show that there were any bidders other than the decree-holders on that date. Curiously enough, when bids were invited on that day
the decree-holders offered a bid of Rs. 8,000/-only and this was accepted by the Court. It is
manifest that the bidding which took place on 18-12-54 was completely ignored and a fresh bid was entertained on 20-12-54.
Learned counsel for the respondents has urged that the bid offered on 20-12-54 should not be
taken into consideration in determining the question as to whether the sale was on hammer since 18-12-54. I am unable to agree. In Jagadish Bahadur v. Ramji Ram, AIR 1934 Pat 659 (B) it has been laid down that the phrase “under the hammer”
means and implies that the sale has in fact started. If the sale in the present case which started on 18-12-54 was kept on hammer because the bid was
insufficient the Court should not have entertained
a fresh bid on the next day. The fact that the decree-holders on 20-12-54 gave a bid of Rs. 8,000/- only indicates beyond doubt that a fresh sale took place on that day irrespective of what had happened on the previous date. I am, therefore, unable to hold that the sale which was held on 20-12-54 was a continuous sale. The case of 104 Ind Cas 215: (AIR 1927 Pat 312) (A) is clearly distinguishable.
7. For the reasons stated above I hold that the sale being in contravention of Sub-rule (2) of Rule 69 of Order 21 there was a material irregularity. The sale has manifestly caused substantial injury to the judgment-debtors and must be set aside.
8. In the result, the appeal is allowed and the sale held on 20-12-54 is set aside. There will be no order as to costs.
