Pedro Antonio De Penha vs Jalbhoy Ardeshir Set on 28 June, 1887

Bombay High Court
Pedro Antonio De Penha vs Jalbhoy Ardeshir Set on 28 June, 1887
Equivalent citations: (1888) ILR 12 Bom 368
Author: West
Bench: West, Birdwood


West, J.

1. The proclamation of sale in this case was made without a prior attachment, because the suit had been brought by a mortgagee to enforce payment of the mortgage-debt with which the property was charged. At the request of the mortgagor, the property, which was of an area of between 10 and 11 acres, was divided into 22 small lots as a means of obtaining a better aggregate price. The only objection to the regularity of the proceedings connected with the sale, that has been left in contention at the end of the arguments, is this, that a separate proclamation of the intended sale ought to have been made on each lot into which the property was or was to be divided. Section 289 of the Code of Civil Procedure requires the proclamation to be made where the property is attached. There being here no attachment, we must read the section by analogy as saying “where the property would or might be attached,” and that is, by Section 274, a spot on or adjacent to the property to be sold. A proclamation orally made on any part of so small an area with beat of drum would be made on a spot “adjacent to” every one of the sub-divisions, i. e., near each one of them, so that even if they are to be regarded as separate properties, the necessities of the law would seem to have been satisfied. A mere breaking up of an area into lots, however, does not necessarily make it several properties for the purposes of a proclamation of attachment or sale. Where estates, though embraced in the same process, are really at such a distance that there is no moral certainty of communication to persons on or interested in the one of what is publicly done on the other, there should, no doubt, be a separate proclamation on each, in order that full intimation may be given of what is to be done.

2. We confirm the Subordinate Judge’s order with costs.

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