Case: Parmanand And Others Vs. Ganpatrao And Others

cannot be held to be invalid, Mr. Masodkar relied on a decision of the Privy Council in Rewa Mahton v. Ram Kishen Singh((1886) L. R. 13 I. A. 106.). In that case, the Privy Council was dealing with a question which had reference to the true construction of s. 246 of the Civil Procedure Code of 1877 (Act X of 1877). The said section had provided that if cross decrees between the same parties and for the payment of money be produced in the Court, execution shall be taken out only by the party who holds the decree for the larger sum, and for so much only as remains after deducting the smaller sum. It appears that contrary to the provisions of this section, an auction sale was held and when the title of the auction-purchaser was challenged, it became necessary to consider that the effect of noncompliance with the provisions of s. 246 would be on the title of the auction-purchaser. The Privy Council held that a purchaser under a sale in execution is not bound to inquire whether the judgment debtor had a cross judgment of a higher amount such as would have rendered the order for execution incorrect. If the Court has jurisdiction, such purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which execution issues. In other words, the effect of this decision is that if in contravention of the provisions of s. 246 an executing Court orders a sale to be held, the auction-purchaser gets a good title notwithstanding non-compliance with s. 246. We do not see how this case can assist Mr. Masodkar in the present appeal. The decision turned upon the construction of s. 246. But the present dispute has to be decided on a construction of s. 149 (2). It is well known that execution sales held under the Code of Civil Procedure can be challenged only in the manner prescribed and for the reasons specified, say, for instance, by O. XXI r. 89, 90 and 91. The fact that certain irregularities committed during the conduct of execution sales would not render the sales invalid, flows from the relevant provisions of the Code and so, it would not be reasonable to invoke the assistance of the decisions dealing with irregularities committed in execution sales in support of the argument that a revenue sale held under s. 128 (f) should be judged by the same principles. The question as to whether the revenue sale is valid or not must obviously be determined in the light of the relevant provisions of the Act and that again takes us to the construction of s. 149 (2).Mr. Masodkar had also relied on the decision of the Calcutta High Court in Ram Prosad Choudhury v. Ram Jadu Lahiri ((1936) 40 C.W.N. 1054.) in support of his argument that a revenue sale held under s. 128 (f) of the Act would not be rendered invalid merely because the amount of arrears shown in the proclamation is not accurate. In the case of Ram Prosad Choudhury, the sale had been held under the provisions of the Bengal Land Revenue Sales Act (Act XI of 1859). Under s. 5 of the said Act, notice had to be issued before the sale could be held. In the notice. issued prior to the sale had been shown a sum which had then not become due as an arrear along with other sums which had become arrears, and the subsequent sale was held on the footing of the total amount thus shown being the arrears due. It was urged that the sale was invalid because of the irregularity committed in the issue of the notice under s. 5. This argument was rejected and it was held that despite the said irregularity, the sale was valid. Now, in appreciating the effect of this decision it is necessary to refer to the provisions of s. 33 of the said Act under which the sale was challenged. We have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It would thus be seen that the scheme of the relevant provisions of the Act in relation to revenue sales appears to be self-contained. The revenue process for recovering arrears begins with the report as to the arrears and ends with the confirmation of sale. Provision is made for the examination of claims of third parties as well as for setting aside sales on account of deposit or on account of irregularities committed in conducting the sales., It is in the light of this self-contained scheme that s. 149 (1) provides that if no application under s. 146 is made within the time prescribed, all claims on the grounds of irregularity or mistake shall be barred. In other. words. the effect of this provision is that if a party aggrieved by a revenue sale of his property wants to challenge the validity of the said sale on grounds of irregularity or mistake, the Act has provided a remedy for him by s.146 and it he fails to avail himself of that remedy, it would not be open to him to challenge the impugned sale on the said grounds by a separate suit. The grounds of irregularity or mistake must be urged by an application made under s. 146 and if no such application is made, then the party is precluded from taking the said grounds otherwise. Thus far there is no difficulty or disputeThe effect of this provision is that if fraud is proved in regard to a revenue sale, a suit will lie and the sale will be set aside; similarly, if it is shown that the arrear for which the property is sold was not due, a suit will lie and the sale will be set aside. There is no difficulty or dispute about this position also.The question on which the parties are at issue before us is in regard to the interpretation of the clause "the arrear for which the property is sold." It has been held by the High Court that what this clause requires is not that the arrear for which the property is sold should be stated with meticulous accuracy, if a mistake is made in showing the actual amount of arrear due from the defaulter for which the property is sold, that mistake would not render the sale invalid; it would be a mistake within the meaning of ss.(1) and so, to cases of that kind sub-section (2) will not applyIn construing s. 149(2) it is relevant to remember that the provision in question is made in relation to revenue sales and there is no doubt that the revenue sales are authorised to be held under the summary procedure prescribed by the relevant sections of the Act, and so, it would not be unreasonable to construe these provisions strictly. That is why we are not inclined to accept the view that in interpreting the relevant clause, we should assume that the Legislature did not expect the authorities to specify the arrear for which the property is sold with meticulous care. If the defaulters property is being sold under revenue sale and the object of issuing the proclamation is to show for what arrear it is being sold, it is, we think, fair to assume that the said arrear must be stated with absolute accuracy. It would not be enough to say that some arrear was due and so, the sale should be upheld though it was purported to be held for recovery of a much larger arrear.Nor is this consideration purely academic. As we have seen, s. 143 provides that if the arrear in respect of which the property is to be sold is paid before the lot is knocked down, the sale shall be stayed. In the present case, if the arrear had been properly shown at Rs. 730113/-, it is theoretically possible that the appellants may have been in a position to deposit this amount before the lot was knocked down and the sale would have been stayed. Since the arrear was shown to be much larger, it is theoretically possible that the appellants could not make a successful attempt to deposit the said amount. Now, in working out the provisions of s. 143, there should be no difficulty in determining the amount which the defaulter has to deposit to avoid the revenue sale. The arrear in question must be correctly stated in the proclamation so that everybody concerned knows the exact amount for which the revenue sale is heldThe only provision which has been cited before us in that behalf is s. 143 and s. 143 expressly provides for the payment of the whole of the arrear due and lays down that on such payment before the lot is knocked down, the sale shall be stayed. Therefore, the complication sought to be introduced by Mr. Masodkar by taking a hypothetical case of a part payment of the arrears due from the defaulter, does not affect the construction of s. 149(2).It is then argued that the impugned sale cannot be said to be irregular in the present case, because on the date when it was, actually held, the amount of Rs. 1, 354 /9/- was in fact due from the appellants as arrears. It is common ground that after the proclamation was issued, a further amount of arrears became due from the appellants and on the date of the sale, the total amount came to be Rs. 1, 354/9/-. In our opinion, arrears accumulating. after an order for sale has been passed and the proclamation in that behalf has been issued, cannot come into the calculation while construing s.149 (2). Every arrear for which the sale is ordered must be specifically dealt with as provided by the Act. It is not open to the authorities to deal with a specific arrear as prescribed by the Act and to pass an order for sale of the defaulters property on the basis of that arrear and then add to it subsequently accruing arrears without following the procedure prescribed in that behalf. Once the amount of arrear is determined and sale is ordered by reference to it, it is that amount which must be shown in the proclamation and it is for that amount of arrear for which the property must be sold. That, in our opinion, is clearly the effect of the relevant clause in s. 149 (2). We must, therefore, hold that the High Court was in error in coming to the conclusion that the sale of the appellants property on the 27th February, 1941 was valid. We are satisfied that the arrear for which the appellants property was sold was not due within the meaning of s.149 (2), and so, the sale must be set asideWe have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid.