S. A. SUNDARARAJAN versus A. P. V. RAJENDRAN

Citation: [1981] 2 S.C.R. 600 · Decided: 13-01-1981 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

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Judgment (excerpt)

Goo 
A 
S. A. SUNDARARAJAN 
v. 
A. P. V. RAJENDRAN 
January 13, 1981 
B· 
[R. $. SARKARIA AND R. S. PATHAK, JJ.] 
c 
D 
E 
F 
G 
H 
Code of Civil Procedure-Order XX!, rule 90-And section 
41-Irr£gula-
rities in settling sale proclamation--Section 41, if attracted. 
In his petition under section 47 of the 
Code 
of Civil 
Procedure 
the 
appellant alleged that the sale of one. of the lots of his property which was 
attached persuant to a decree of a court was vitiated in that there were several 
irregularities and omissions in the proclamation of sale and the conduct of the 
sale. Accepting his contention that the material irregularities in the sale pro-
clamation vitiated the sale, the executing court set aside the sale. 
Allowing the respondent's appeal, the High Court held that the application 
for setting aside the sale lay under rule 90 of Order XXl and not under section 
47 of the Code. 
Dismissing the appeal 
HELD : The application for setting aside the sale on tho grounds taken 
by the appellant is referable to rule 90 of Order XX! and, therefore, not to 
section 47. 
[603F] 
The settling of the sale proclamation is part of the integral process of 
publishing the sale and irregularities committed in the process of settling the 
sale proclamation are irregularities which fall within the amplitude of rule 90 
of Order XXL 
£603BJ 
The errors complained of by the appellant amounted to mere irregularities 
comn1itted in settling the sale proclamation: and could not be described 
as 
e11rors which render the sale void. 
[602D] 
The requirements which were not complied with when settling the sale pro--
clamation were intended for the benefit of the appellant who could waive them. 
1"hey were not matters ·which went to the root of the court's jurisdiction and 
constituted the foundation or authority for the proceeding or 
where 
public 
interest y,.·as involved. They were mere irregularities which fell 
within 
the 
scope of rule 90 of Order XX! C.P.C. 
[602E-F] 
Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. 
Sudhir 
Chandra Ghosh and Others [1964] 6 S.C.R. 1001 applied. 
CIVIL APPELLATE JURISDICTION : Civil 
Appeal No. 124 
of 
1981. 
Appeal by StPecial Leave from the Judgment and Order dated 
14-6-1979 of th~ Madras High Court in AAO No. 386/75. 
• 
s. A. SUNDARARAJAN v. A. P. v. RAJENDRAN (Pathak, J.) 
60 I 
' 
M. Natesan, K. Ramkumar and Mrs. J. Ramachandran for the 
A 
Appellant. 
T. S. Krishnamoorthy and K. R. Choudhary for the Respondent. 
The Judgment of the Court was delivered by 
PATHAK, J.-This appeal by special leave is directed against the 
judgment of the Madras High Court maintaining that objections 
in 
regard to a sale proclamation in proceedings for execution of a civil 
decree can be raised under rule 90 of Order XXI, 
Code of Civil 
i 
Procedure. 
~ 
A civil suit by the respondent against the appellant was decreed 
in 1971. The attachment of the appellant's property before judgment 
was made absolute on the date of the decree. To execute the decree 
the respondent filed execution Petition No. 222 of 1972 and prayed 
for sale of the attached property. It was decided to put up the attached 
!Property in two lots for sale. 
Lot No. 1 was sold on 28th January, 
1974 for Rs. 40,0001- to the respondent. 
Lot No. 2 was not sold 
for want of bidders. 
The sale of Lot No. 1 was confirmed by the 
court on 2nd March, 1974 and full satisfaction of the 
decree was 
recorded. 
Subsequently, the appellant filed Execution Application 
r 
No. 600 of 1974, purporting to be under s. 47 of the Code, for setting 
aside the sale of Lot No. 1. He claimed that the proclamation of sale and 
the conduct of the sale was vitiated by several irregularities. 
It was 
alleged that the proclamation was not drawn up in accordance with 
law, that credit had not been given for a payment of Rs. 6,000/- made 
by the apjpellant and that there were other omissions in the sale pro-
clamation inasmuch as it did not mention the date of auction, the tax 
payable in respect of Lot No. 1 and the revenue assessment in respect 
of Lot No. 2. It was also alleged that the reduction of the upset price 
from Rs. 80,000/- to Rs. 40,0001- for Lot No. 1 was improper and 
that as the appellant was an agriculturist entitled to the benefit of 
,>-" 
Act No. IV of 1938 he was not liable to pay interest prior to 1st 
February, 1972 and consequently the amount mentioned in the sale 
proclamation as due from him was incorrect. 
The application w

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