1. MUHAMMAD HALEEM, J.-The petitioner seeks special leave to appeal against the order of the High Court of Sind dated 3rd of October, 1979, by which the petitioner's application for setting aside the sale in favour of the second respondent was dismissed.
2. The facts which have led to the filing of the aforementioned application under Order XXI, rule 90, C.
3. P. C. Are that the first respondent obtained a preliminary decree for forecolsure on 10th of January, 1974 ; and as the petitioner failed to deposit the decretal amount within the prescribed period, a final decree was passed on 13th of August, 1974. The first respondent, thereupon, filed an application on 29th of January, 1975, for the execution of the decree by sale of the mortgaged property namely, a plot of land measuring 531 sq. Yds. And bearing No. D-130 with a bungalow thereon, situate in K. D. A. Scheme No. 1, Drigh Road, Karachi. Notice was issued to the respondent for 17th of November, 1975, on which date the petitioner appeared in Court and took time for engaging a counsel to represent her. On the next date via. 24th of November, 1975, her counsel appeared and filed his Vakalatnama ; and on 1st of December, 1975, by consent of the counsel for the parties another execution application bearing No. 156 of 1970 in Suit No. 247 of 1957, which was then pending against the petitioner before the District Judge, was transferred to the file of the High Court. Again, the counsel for the parties took time on 9th of February, 1977, for the settlement of the dispute but on the next date of hearing neither the petitioner appeared nor her counsel nor were any objections filed earlier to resist the execution of the decree for sale. Accordingly, the execution application was allowed and the Court ordered the sale of the property and for the rateable distribu--tion of the sale proceeds.
4. After due notice to the parties, the Additional Registrar settled the terms of the proclamation and fixed the public auction of the property on 18th of December, 1976, at 3.30 p. m. At the site ; but even on this date the petitioner and her counsel remained absent. Due publicity was given to this proclama--tion but no one turned up to participate in the auction as would appear from the report of the Nazir dated 18th of December, 1976. The Nazir, thereafter, made a reference to the Court on 6th of January, 1977, after due notice to the counsel for the parties as per Bailiff's report dated 11th of February, 1977. The Court, thereupon, ordered on 21st of March, 1977, for the issuance of the fresh proclamation for the sale of the property which order was complied with and again the auction was fixed for 1st of October, 1977, at 3.30 p. m. At the site. Due publicity was given to this proclamation but no one again appeared to participate in the auction.
5. Finding that this mode of sale had become impracticable, the Nazir submitted his reference on 30th of October, 1977, in which he gave out that through his personal efforts he had obtained an offer of Rs. 3,25,000 from the second respondent who had furnished a pay order for Rs. 77,500 and sought the approval of the Court for accepting this offer. Notice of the reference was served on the counsel for the parties as per Bailiff's report dated 17th of November, 1977. On the crucial date viz., the 20th of November, 1977, the counsel of the petitioner remained absent although the counsel for the decree-holder appeared and gave his consent to the acceptance of the offer. It may here be highlighted that this offer was in excess of Rs. 2,33,164, the approximate value of the property. The Court, by its order dated 20th of November, 1977, accepted the offer and directed the sale certificate to issue after the deposit of the balance of the amount within one month. The second respondent deposited the balance of the amount on 4th of December, 1977, and a sale certificate was issued on 19th of Decem--ber, 1977.
6. The present, application for setting aside the sale was filed on 8th of January, 1978, principally on the ground that the mode of sale was in violation of Order XXI, rule 65 which provision prescribes the sale by public auction. Other objections were taken in regard to the manner and the mode of the publication of the proclamation. The decree-holder resisted the application on the ground that it was barred by time and further that there was no violation of Order XXI, rule 90, C. P. C. And for that matter any other provision of the Code of Civil Procedure.
7. On the plea of limitation the High Court held that time began to run from 20th of November, 1977, when the second respondent's offer was accepted ; and if the date on which the balance of the amount was deposited, viz., the 4th of December, 1977, be taken as the starting point of limitation, even then time ran out before the filing of the application on 8th of January, 1978, under Article 166 of the Limitation Act which prescribes a period of 30 days from the date of sale. The plea of the petitioner that his time began to run from the date of the certificate of sale which, in the instant case, was 19th of December, 1977, was repelled on the short ground that the issuance of the certificate was "merely an administrative act" consequent upon the deposit of the balance amount. As such this date cannot be regarded as the date of sale which was admittedly the date on which the offer was accepted.
8. In regard to the objection that there was violation of rule 65, Order XXI, C. P. C., the Court held that though the mode of sale by public auction was prescribed yet in a fit case the Court could, in the exercise of its inherent jurisdiction, accept a private offer after due notice to the parties if it was reasonable in the absence of any "prohibitive legislation". The High Court also dealt with the other objections relating to the manner and mode of the publication of the proclamation and rejected them on the short ground that the petitioner had failed to prove that the prescribed method had resulted in a loss to the petitioner ; and further, that as he had failed to object to the mode of the publication of the proclamation he was debared from raising it now.
9. The plea of the inadequacy of the sale price was also rejected on the premise that as the petitioner or her counsel had failed to object at the time the offer was accepted, it was not open how to make a grievance of it.
10. In seeking leave to appeal, the learned counsel for the petitioner con--tended that the application was not time barred. In contending so, his plea was that the time should be reckoned from the date of the issuance of the sale certificate ; but having regard to the language of Article, 166 of the Limitation Act, the date of sale is the date on which the hammer, falls at a public auction or in case of private sale when the o5er is accepted. In Sham Singh and others v. Vir Bhan and others (AIR 1942 Lah. 102), Gauri v. Ude and others (AIR 1942 Lah. 153) and Sitaram v. Asaram (AIR 1924 Nag.
11. 108) the plea, such as is taken now, was rejected on the unambiguous language of this Article.
12. Therefore, the High Court was correct in holding that the application was not within time.
13. Nonetheless it did go into the other objections and held that despite the service of notice the petitioner had failed to object to the mode of the publicationof the proclamation or to voice her grievance against the private offer which was accepted by the High Court. In Ghulam Abbas v.
14. Zohra Bibi and another (PLD 1972 SC 337) which is a case from Karachi, it was held :- " . . . . Indeed, it would appear that the view of the Courts has consistently been that the non- compliance with the provisions of the Code of Civil Procedure, with regard to the proclamation of sale, its publication and the conduct of the sale in execution, are only material irregularities but not illegalities which render the sale in disregard of those provisions a nullity. A sale cannot be set aside unless `direct evidence of substantial injury resulting from the irregularity has been given and the onus of proving this prejudice is on the party complaining thereof.
15. In the light of these observations the High Court was correct in holding that the petitioner had failed to prove substantial logs in case there was violation in the publication of the proclamation such as the failure to publicise it by the beat of drum and the other irregularities, if at all they were committed.
16. The learned counsel next contended that there was no order of the Court for inviting private offers for sale but this contention looses sight of the fact that the Court, by accepting the reference of the Nazir had given its tacit consent 'to it, which eminently reflects that the mode of public auction had become impracticable and, therefore, in the ends of justice this was the only course open for the sale of the property in execution of the decree. The objection thus being technical has no substance. Further, if the petitioner had any objection to this mode of sale then she should have objected to it, but having remained absent she must be deemed to have waived her right to do so.
17. The learned counsel vehemently urged that the property could not be sold otherwise than by auction. For this proposition, he placed reliance on rule 65, Order XXI, C. P. C. And rule 351 of the Chief Court Rules (Original Side). These provisions do prescribe the mode of disposal by public auction but neither of them expressly or by necessary implication prohibit any other mode of disposal. Therefore, if the Court had deviated from this mode of disposal to serve the ends of justice, no exception can be taken to it. In Narsing Das v. Mangal Dubey ((1883) 5 All. 163) Mahmood, J. Observed :- "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."
18. This principle is now well accepted and as the prime object of the procedural law is to advance the cause of justice, the Court can, under its inherent power, adopt a different mode in the absence of any prohibition to that effect, This contention is also without substance.
19. Lastly, it was contended that the High Court erred in not disposing of the application under section 47, C. P. C. On merits ; but from the order itself it appears to be misconceived as it was filed at a belated stage after the arguments had concluded and the counsel for the parties had taken time to settle the matter. In making the application, the object was to show that the petitioner was not served with a notice for the date on which the Nazir's reference was accepted by the High Court on 20th of November, 1977 ; but this objection was not taken earlier and if at all it had substance. It should have been raised their and not at this belated stage. No exception can be taken to it.
20. Concluding, therefore, we are of the view that the order of the High Court is unexceptionable.
21. Accordingly, the petition is without substance and is hereby dismissed.