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1. The judgment of the late learned Chief Justice Sir Barnes Peacock in the case of Okhoy Chunder Dutt v. Erskine 3 W.R. Mis. R. 11 may be quoted as showing that, in all cases in which a sale may be postponed to another day, it is necessary that the formalities required by law should he gone through afresh (unless it be that they have been waived by the parties themselves). He says–“It is exceedingly important that when an auction-sale is to take place in exection of a decree, a proclamation should be made, giving notice of the day on which the sale is to take place, so that intending purchasers may go and bid for the articles put up for sale, and Act VIII of 1869 is express on the point.” he then goes on to quote Section 249.
2. The case then before the Court is, no doubt, somewhat different from the present case, inasmuch as in that case the postponement had been indefinite, whereas in the present case the postponement was to a certain fixed day. Still it appears to us that the principle applies, that in all cases the prescribed notice must be given in order that intending purchasers may he able to attend and bid at the sale, unless the giving of such notice is specially waived. In the present case there was no such notice as is required by Section 249, though it had become necessary in consequence of the first notice having become inoperative otherwise than by the action of the parties to the suit.
3. With reference to the substantial injury arising from this irregularity, we think that we ought to hold that, as the law distinctly requires a notice, and as the notice is so important, in order to secure a fair chance of a proper price being offered for the property to be sold, it may be presumed, when the notice is wanting, that there has been an absence of bidders, from which alone substantial injury to the judgment-debtor must probably have arisen.
4. There is some evidence, moreover, in this case that the property was sold for less than its actual value. The Judge has rejected that evidence as untrustworthy, but we think that it should be road in the light of the presumption that there must probably ho substantial injury from want of notice, and that some weight should consequently be given to that evidence, unless it is clearly rebutted by evidence of the other side. There being no such rebutting evidence, we are bound to hold that there is sufficient proof of substantial injury.
5. The order of the lower Court, must, therefore, be reversed, and the sale set aside with costs payable by the purchaser respondent.