Tripura Sundari And Ors. vs Durga Churn Pal And Ors. on 13 September, 1884

Calcutta High Court
Tripura Sundari And Ors. vs Durga Churn Pal And Ors. on 13 September, 1884
Equivalent citations: (1885) ILR 11 Cal 74
Author: P A Macpherson
Bench: Prinsep, Macpherson


Prinsep and Macpherson, JJ.

1. The irregularity complained of in the publication of the sale proclamation is that the proclamation was not fixed up in any part of the properties sold. This objection as regards the Husnabad property is groundless. The evidence shows that the decree-holders and judgment-debtors have their cutcheries on the opposite sides of a courtyard, that of the former being on the south and north sides, and that of the latter on the west side. The notice was attached to the house on the north side, because the western house is said to have been at the time under repair and the judgment-debtors were using the north house. The latter fact is denied by witness No. 10 of the judgment-debtors, but the fact of suspension being proved, and the property being joint, there was, we think, a sufficient compliance with the law, whatever the truth may be as to the occupation of the particular rooms. The return of the peon who proclaimed the sale does not show that a copy of the proclamation was fixed up in any part of the Tarabolia and Abdullapur properties. On the contrary, he seems to have been furnished with only one copy of the proclamation for publication in this way, though the sale was in all other respects properly published. This was, we think, an irregularity. It has been held, and, in our opinion, rightly, in Kalytara Chowdhrain v. Ramcoomar Goopta I.L.R. 7 Cal. 466 that under Section 289 of the Civil Procedure Code, a copy of the sale proclamation must be fixed up in some conspicuous part of the property. When several separate properties are attached under one proceeding or order, in one execution case, the attachment is separate and distinct as regards each. The words “on the spot where the property is attached” in Section 289 must refer to each property attached, and not to the whole in a lump. When, therefore, distinct properties are proclaimed for sale in one execution, it is not sufficient to affix one copy of a general proclamation covering all of them on a part of one only of such properties; it must be affixed on each. The object of the section is to give due notice of the intended sale of each attached property, and this would be defeated if, when there are several distinct and unconnected properties, a general sale proclamation is affixed to one only.

2. We are unable, however, to hold that in the present case the irregularity is a sufficient ground for setting aside the sale, as we cannot trace to it the damage complained of. It is urged that the decision of the Privy Council in Olpherts v. Mahabir Pershad Singh L.R. 10 I.A. 25 does not apply; but it is quite clear that, when there is no evidence to connect an injury with an irregularity, the one must at least flow reasonably and naturally from the other and be attributable to it alone. The appellants do not attempt to prove that there was a paucity of bidders owing to defective publication. On the contrary, their case is, that there were a number of persons who, but for the conduct of the decree-holders, would have bid more than the properties actually realized. They fail to prove this, and we cannot infer that there was from other causes an absence of bidders.

3. The appeals must therefore be dismissed with costs.

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