Patna High CourtTribeni Missir vs Gopal Misra And Ors. on 18 August, 1962Equivalent citations: AIR1963PAT60, AIR 1963 PATNA 60JUDGMENT
 

 K. Ahmad, J.1.  The controversy in this case arises out of a court sale held on the 21st March, 1956 in Execution Case No. 387 of 1955 wherein a decree under execution was a money decree passed in Money Suit No. 152 of 1950 on the 24th July, 1952, in favour of the appellant against one Jagdish Missir, father of plaintiffs 1 to 3 and husband of plaintiff No. 4 who are respondents here. It appears that in the execution petition four plots were given in Taliqua. They were plot Nos. 2014 and 2034 of khata No. 107 and 2039 and 2042 of khata No. 113. Subsequently, attachment also seems to have been effected against all these four plots. But the main controversy now raised is whether plot No. 2042 was included in the sale proclamation or not.2. The case of the plaintiffs is that it was not included and the sale subsequently held on the 21st March, 1956, in respect of half of this plot 2042 was brought about fraudulently, though the same was not included in the sale proclamation. According to the plaintiffs, therefore, such a sale is void and nullity in law. Hence the suit for the declaration that the court sale held with respect to 1.48 acres of land of plot No. 2042 of khata No. 113 in Execution Case No. 387 of 1955 by the Court of Munsif, Aurangabad, was a nullity and void, and that the plaintiffs' title thereto remained unaffected by the said sale as also for recovery of possession ot the said land.It may be stated here that after the court sale of the 21st March, 1956, which was confirmed on the 21st May, 1956, delivery of possession of the land in dispute along with other lands auction sold was given to the defendant-appellant on the 28th July, 1956. Subsequently a miscellaneous case bearing No. 335 of 1956 was also filed on the 7th August, 1956, by the plaintiffs for the relief that the sale of the land in suit was void. This miscellaneous case was on contest ultimately dismissed on the 14th December, 1956, on the ground that the same was barred by time. Thereafter the present suit for the reliefs, as already stated above, was instituted by the plaintiffs on the 4th July, 1957.3. In defence a number of pleas were set up. Further it was also pleaded that the aforesaid plot No. 2042 was included in the sale proclamation, and that the same was properly served at the site of the property. Lastly, it was also stated in the written statement that the story of fraud as averred in the plaint was altogether false.4. Both the courts below on contest have affirmatively decreed the suit. Hence, this appeal by the defendant5. In this Court Mr. Shambhu Nath (No. 2), appearing for the defendant-appellant, has pressed the appeal mainly, on three points (1) that the court sale as held on the 21st March, 1956, was not void and nullity but at best a case of irregularity; therefore, the remedy, if any, available to the plaintiffs was one under Order 21, Rule 90, C. P. C., and not any independent suit; (2.) that the finding given by the lower appellate court that the plot in dispute, namely, plot No. 2042 was not advertised for sale is not based on sufficient materials and the inference drawn in support thereof is perverse; and (3) that in any view of the matter, the present suit is barred by res judicata as a result of the order passed on the 14th December, 1956, in the aforesaid Miscellaneous Case No. 335 of 1956.6. In support of the first contention reliance has 'been placed by learned Counsel on the decisions in Nripat.Nath Bhattacharjee v. Jatindra Kumar Das,AIR 1926 Cal 577, Gajrajmati Teorain v. Akbar Hussain, ILR 29 All 196 (PC), Philip v. Thomas, AIR 1958 Ker 305, Chhat-tarpatt Singh v. Surendra Nath Singh, AIR 1918 Pat 266, Raja Wazir Narain Singh v. Bhikari Ram, ILR 2 Pat 207 : (AIR 1923 Pat 45), and Jogendra Nath v. Sheikh Nabi Nawaj, AIR 1938 Cal 699.7.In my opinion, In reading these decisions we have to keep a clear distinction in our minds between a case where a property is included in the sale proclamation but in the course of the service of the sale proclamation the provisions of law aslaid down inrules 67 to 69 of Ordr 21, C. P. C., are not fully complied with and certain irregularities are committed, and a case where though the service of the sale proclamation as effected  is regular in law, but in the sale proclamation so effected I any particular property is not included therein at all. in the case of the first type the question that arises for  consideration is whether the law as provided under Rules 67 to 69 of Order 21, C. P. C., have been complied with or not, and if they have not been complied with, then such a non-compliance amounts in law to an irregularity or an out and out nullity.The cases relied upon by Mr. Shambhu Nath No. 2, asreferred to above, mostly deal with such a situation, and therein it has been uniformally held and, if t may say so with respect, rightly that the non-compliance in regard to the provisions of Rules 67 to 69 of 0. 21, C. P. C., amounts to nothing but an irregularity. Therefore, in the case of such a non-compliance the remedy available to the Judgment-debtor is one as provided in 0. 21 rule 90, C. P. C., and not any independent suit on the ground that the sale Is a nullity or void. In the present case what the lower appellate court, as the judgment under appeal shows, has held is not that though plot No. 2042 was included In the sale proclamation but in course of the service of that sale proclamation certain irregularities had been committed; rather it has held that though there was a sale proclamation served at the spot and a copy of which had been brought on the record as Ext. 2, that did not include plot No. 2042 but some other property.This, therefore, takes us to the question whether a property without being Included In the sale proclamation or, in other words, without being published for sale can be validly auction-sold by the Court. Clause (1) of Rule 66 provides that where any property is ordered to be sold by public auction In execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.Further, on principle it is well established that in the execution of a decree, it is open to the decree-holder to get the decree executed in any mode as provided inSection 51of the Code of Civil Procedure, and barring a case where a relief is sought by arrest and detention in prison the Court has no option to deny the prayer made in the execution petition by the decree-holder. Therefore, if a decree-holder puts in a property for sale in the sale proclamation, the executing Court under the aforesaid Clause (1) of Rule 66 has to proclaim it for the purpose of sale, and then has got the jurisdiction to sell it. In case any third party is found to have interest in that property, that third party is not bound by the sale, but as between the judgment-debtor and the decree-holder the sale is binding unless that  is got set aside as provided in law.In the present case, as found by the lower appellate Court, plot No. 2042 was never included in the sale proclamation. The question, therefore, arises whether in the absence of any proclamation or publication of the sale of such a property the executing court could at all validly sell it. On this point the only authority that has been brought to my notice is one aslaid down inSrikakula Chinna Venkatanarayana v. Pannapati Bias, AIR 1954 Mad 1024. That decision clearly holds the view that unless a property is included in the sale proclamation or, in other words, unless the sale of a property is proclaimed in the sale proclamation, the Court has got no jurisdiction to sell it, and if it does sell, the sale is a nullity and void in law.In my opinion, the view taken in this decision is on principle also, if I may say so with alt respect, sound and unassailable. After all, it is always open to a decree-holder to ask the Court as to which property should be sold for satisfying the decree under execution, and if the decree-holder does not choose to put in any particular property for sale, can it be said that it is still open to the decree-holder to turn back and say that though the particular property is not included in the sale proclamation, it should still be sold by the Court for the realisation of the decree? In my opinion, the answer to this question has to be given in the negative. In the present case, as already stated above, the finding given by the lower appellate Court is that plot No. 2042 was not included in the sale proclamation. That means that the sale of plot No. 2042 was never proclaimed. That being so, I think rightly the Courts below have concurrently held that the sale on the facts of the present case is void and nullity, and, therefore, the suit for the relief, as stated above, is maintainable in law.8. Then comes the second point raised on behalf of the appellant. That is in relation to the finding given by the lower appellate court that plot No. 2042 was not advertised for sale at all. This finding of the lower appellate court is based on a consideration of Ext. 2 as also on other considerations. The grievance made by Mr. Shambhu Nath No. 2, however, is that in coming to this finding the Courts below should not have laid reliance on Ext. 2 but only on Exts. B and D-1. The main reason advanced in support of this submission made on behalf of the appellant is that it is quite understandable that at the time of the issue of the sale proclamation, it may have been done in two lots and not in one lot. There fore, Ext. 2, which refers to plot Nos. 2014 and 2034 alone, cannot be any conclusive evidence of the fact that plot No. 2042 was not advertised for sale by a separate sale proclamation. In my opinion, this argument is based on conjecture. Secondly, the finding as stated" above is purely a finding of  fact and it is now conducted in second appeal.    Therefore  it fails.9. The third contention raised on behalf of the appellant relates to res judicata, and that has been based on the basis of the order passed on the 14th December, 1956 in Miscellaneous Case No. 335 of 1956. I have already stated above that this Miscellanecus Case No. 335 of 1956 was dismissed not on merit but on a technical ground that the miscellaneous case as instituted was barred by time. Therefore, that order as it stands cannot operate as res judicata as provided inSection 11of the C. P. C. Further this view is also supported by the decision in AIR 1954 Mad 1024. Therefore, this point also has to be negatived.10. In the result,  therefore,  I   hold that  there is no substance  in this appeal.    Accordingly,  it is dismissed but in  the  circumstances  of  this  case,  there  will  be  no order for  costs.