LexRADHY SHYAM versus SHYAM BEHARI SINGH
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A 8 0 E F If RADHYSHYAM v. / SHYAM BEHARI SINGH August 12, 1970 (J, M. SHELA!' AND C. A. VAIDIALINGAM, JJ.] .783 Letters Patent-Allahabad High Court-Clause 10-Jf mder on Appli• rntiun under Order 21 r. 90 C.P.C. is a 'Judgement'. Civu Procedur< Code, 1908, Order X Jr/, mies 69, 90-Material i•·regularity in auction safe-What is. After the respondent had obtained a decree for about Rs. 9,000 agJ.inst the appellant, the appellant's share in a house was put up for ~ale in execution proceedings initiated by him and a proclamation setting out the date and hour for the sale was issued. But the sale was postponed at the instance of the appellant. At the auction sale held oa the adjourned <hte the respondent purchased the appellant's share for Rs. 8,000/-. The appellant thereafter filed an application for setting aside the sale under Order XX!, r.90 C.P.C, on the ground that contrary to the prO\isions of r.69 the notice relating to the adjourned sale did not set out the ho_ur when the auction would be held and that this omission was a material irregularity which vitiated the sale. Although the application was rejected by the Execution Court, a single judge of the High Court upheld the appellant's objection holding that the failure to set out the hour amounted to a material irreguarity .. However, a Division Bench in an appeal under clause JO of the Letters Patent C'f the Allahabad High Court reversed the _order. In appeal to this Court it was cont~nded (i) that tht! order of th: single judge was not a 'judgment' within the meaning of cl. I 0 of the Letters Patent and hence no Letters Patent appeal could be filed thereunder; and (ii) that the sale suffered fron1 a material irregularity whict~ caused substantial injury to the appellant and was therefore liable to be set aside. HELD : Dismissing the appeal, (i) An order in a proceeding under 0.XXI. r.90 is a •judgment' inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuabk rights a11d the order allowing the applica- tion ct:rtainly deprives the purchaser of rights accrued to him as a result d the auction-sale. The High Court was therefore right in holding that a bLetters Patent appeal law agamst the order of the sin~le Judge. [789 C- ] - (ii) Ruic 90 of 0.XXI of the Cotte, as amended by the Allahabad Hig_h Court._ inter a/ia provides that no sale shall be set aside on the ground of 1rregulantv or even fraud unless upon the facts proved the Court jg at1sfied that the applicant has sustained injury hv reason of such irre- gularity or fraud. Mere proof of a material irregularitv such as the one under r.69 and even inadcqua::y of price realised in such a sale, in other words. injury, is, thcr~forc, not sufficient. It has further to be sho\vn th<it such injury was the result of material irregularity. [789 El The Division Bench of the High Court was right in holding, on the fads in the present case. that the appellant had failed lo show inadequacy 784 SUPREME COURT REPORTS [1971] 1 s.r" of the pF-ice (Jl' that such ina<lequaGy ·\\·as o:casione<l by the saili n1aterial irregularity. l789 G] Standard Glms Beads Factory v. Shri Dhar, A.f.R. 1960 All. 691 (F.8.); Piare Lal v. Madan Lal, A.I.R. 1917 All. 325; Muhammad Nai· 111111/ah Khan v. Jbsanu/lah Khan, (1892) 14 All. 226. (F.B.); Ram Sal'll/) v. K(1niz U1111nelu:ni, J. Y.R. ll937] AJJ, 886; Asrun1ati dehi v. Ku111ar R11pe11dra Deh Raiko!. [1953] S.C.R. 1159; Justices of the Peace for Cal· rntta v. Oriental Gas Co., 8 Beng. LR. 433; Tuliaram v. Alagappa, I.LR . .1.'> Mad. 1; Dayabhai v. Murngappa Chettiar, I.LR. 13 Rang. 457;. State v/ Uttar Pradesh v. Vijay Anand Maharaji (1963] l S.C.R. 1, Be~u111 Aftah Zamuni v. Lal Cha.IJll Khanna, I.LR. [ 1969] Delhi 34( F.B.); Sliankarlal Aggarwal v. Slwnkar la/ Poddar, [1964] I S.C.R. 717; Mohan Lal Magun Lal Thack'r v. Gujarat, [ 1968] 2 S.C.R. 685; and J arapore & Co. v. Mis. VIO Tractors Export, Moscow, [19691 ' ~IR ?UQ· referred ~o. CIVIL APPELLATE JuR;SDICTION : Civil Appeal No. 1,'if;(j nf 1966. Appeal by special leave from the juagment and ord~r dated August 22, 1961 of the Allahabad High Court in :special Appeal No. 417 of 1959. A vadh Behari, for the appellant. Mohan Behari Lal, for the respond~nts. The Judgment of the Court was delivered by Shelat, J. The respondent had obtained a decree for Rs. 9000/· and odd against the appellant.
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