' The judgment-debtors Nos. 4 and 10 have filed application under Order XXI, rule 90, C. P. C. For setting aside the sale of the immovable property being bungalow No, 67-B, K. D. A. Scheme No, 1, Karachi of which they are co-owners along with other judgment-debtors. The decree-holders had filed a suit on 25-2-1967 under Order XXX1V, C. P. C. In which a final decree was passed on 9-5-1976.
The decree-holder then filed execution application No, 50/77 on 15-10-1977. Notice of execution application was issued and it was served on Judgment-Debtors Nos. 2 and 10 for hearing on 1-2- 1978. The other judgment-debtors remained unserved. On 8-3-1978 Mr. Munawar Abbas, Advocate filed power on behalf of judgment-debtors Nos. 4 and 10 Ultimately on bailiff's report dated 17-4- 1979, the Additional Registrar by his order dated 20th August, 1980 held the service of notice of sale proclamation as proper. On 10-9-1980 the draft sale proclamation was approved and was placed before the Nazir on 5-3-1981. This is borne out by the bailiff's endorsement of the Nazir made on the sale proclamation itself. The Nazir then fixed the date of auction as 11-4-1981. According to bailiff's report dated 30-3-1981 a copy of the sale proclamation was affixed on the property and one copy each was affixed on the Court notice board and the area police station. The Nazir in his reference dated 2-5-1981 has stated that the sale was advertised in daily Morning News, Daily Mashraiq and Daily Millat Gujrati. Besides two hundred handbills were also distributed at different places of the city and in the vicinity of the property. The auction was thus held on 11th April, 1981 and S. M. Farooq a resident of 68-B, K. D. A. Scheme No, 1 was the highest bidder having offered Rs, 11,50,000. It is also stated that 4 persons had participated in the bidding. The matter came up for confirmation of sale before the Court on 17-5-1981 when the Advocate for judgment-debtors Nos. 4 and 10 was also present. No objections were filed against the proclamation of sale or the auction held on 11-4-1981.
Consequently considering the offer of the auction-purchaser as reasonable the sale was confirmed. Thereafter, the judgment-debtors Nos, 4 and 10 filed the present application,
2. Mr. Khalid Latif the learned counsel for the judgment-dehtors Nos. 4 and 10 has contended as follows :
(i) That there was no publication as provided by Order XXI, rules 66 and 67, therefore, the sale is nullity.
(ii)As there was no proclamation made by beat of drum the sale was a nullity.
(iii) As the property was not attached before the auction the sale was illegal.
(iv) As the auction was carried out within 30 days of the publication of sale proclamation it was illegal.
3. Order XXI, 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 sale to be made. It further provided that such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and will specify the particulars of the property and other details as specified in sub-clause (2). Rule 67 provides that every proclamation shall be made and published as nearly as may be in the manner prescribed by Order XXI, rule 54(2), C. P. C. Which is as follows :- "Order XXI, r. 54 (2)-The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate."
' Thus sub-clause (2) provides the method in which order should be proclaimed. It requires to be proclaimed by beat of drum or other customary mode at some place on or adjacent to the property. It further provides that a copy of the Order shall be affixed on a conspicuous part of the property and on the conspicuous part of the court house and where the property is land paying revenue to the Government it shall be affixed in the Office of the Collector. Order XXI, rule 66 thus imports the method of publication as provided in sub-clause (2) of rule 54. It has, therefore, to be examined whether such procedure was followed before the auction and if it was not followed then will it render the sale a nullity?
4. From the record it is clear that terms of sale proclamation were settled after due notice to the decree-holder and the judgment-debtors. The judgment-debtors were duly served of such notice.
Thereafter, the sale proclamation was affixed on the property and the Court Notice Board. The bailiff has reported that on 5th, 16th and 22-3-1981 he delivered a copy to the Nazir, one copy was affixed on the Notice Board, another copy was affixed on the property. Another notice was also affixed on area police station. The sale was also published in the newspapers viz. Morning News dated 6-4-1981, Mashriq dated 7-4-1981 and Millat Gujrati dated 6-4-1981. It is thus clear that publication and proclamation was made as stated above. Mr. Khalid Latif the learned counsel for the judgment-debtors Nos. 4 and 10 has contended that the notice was not affixed on the property and it was not proclaimed by beat of drum in the locality. In support of his contention the learned counsel has referred to the affidavits filed by the tenants of the building in dispute who have stated that neither they had seen the notice affixed on the building nor they had heard the beat of drum on these places. The learned counsel contended that these omissions amount to material irregularity which vitiates the sale. In support of his contention the learned counsel has relied on S. Sivaramakrishnan and others, v. Kattakstin Kunhumoidian's Kunhamuthammad (0, where it was held that the proclamation should be made on the spot and a proclamation should be affixed on a conspicuous portion of the property and failure to do any one of them will be an irregularity. The learned counsel has also referred to Roopkishore v. Collector, Etah and others (2), where it was held that where the sale proclamation is not affixed on any part of the property to be sold but on a tree at some distance from the place the omission to affix the sale proclamation on the property itself is a material irregularity. In this case the main reason for setting aside the sale was that the auction sale was postponed to another date without any notice to the parties. The learned counsel for the judgment-debtors also referred to Rajinderbehari La! v. Gulzarilal and athers (3) where it was held that failure to publish a sale proclamation by beat of drum where it is possible is a material irregularity. But unless such irregularity can be connected with the alleged loss the sale cannot be set aside. Reliance was placed on AIR 1910 Born. 504, AIR 1940 Cal. 635 (P and AIR 1921 Cal. 66 (P
5. No doubt non-compliance of provisions regulating the auction of property in execution of decree is an irregularity or a material irregularity but the question to be considered is whether in all such cases of irregularity the sale is vitiated. In AIR 1933 All. 747 in spite of the fact that proclamation was not made by beat of drum it was held that unless material irregularity has caused substantial injury sale cannot be vitiated. It is thus clear that sale can be vitiated only when the irregularity committed in the auction has caused substantial injury to the judgment-debtors. In this regard it is pertinent to note that Order XXI, rule 90 under which sale may be set aside on grounds of irregularity or fraud, provides that no sale shall be set aside on ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. It is, therefore, the duty of the person challenging the sale first to establish that irregularity or fraud has been committed and due to such irregularity substantial injury has been sustained by him. Unless these two pre-conditions have been satisfied it is not possible to set aside the sale merely on certain irreaularity which may have been proved. In this regard the controversy seen es to have been set at rest by Ghulam Abbas V. Zohra Bibi and another (4). This case relates to auction of property at Karachi. One of the grounds for setting aside the sale was that there had been a material irregularity in publication of the proclamation of sale by not publishing the sale proclamation by beat of drum as provided by Order XXI, rules 54 and 67, C. P. C. The Supreme Court made the following observation "It may also be pertinent to point out here that, under Order XXI, rule 67 of the Code of Civil Procedure itself, all that is required is that 'every proclamation shall be made and published, "as nearly as may be, in the manner prescribed by rule 54, sub-rule (2)' and in this sub-rule it is provided that the proclamation shall be, by beat of drum or other customary mode". Publication by beat of drum, therefore, is not the only mode by which the order can be proclaimed. The object of these rules is to ensure that due publicity is given to the fact that a sale is to be held and proper opportunity is given to
(1) AIR 1965 Ker. 99 (2) AIR 1929 All. 948
(3) AIR 1933 AIL 741 (4) PLD 1972 SC 337 bidders to attend the sale. We are satisfied that such publicity was given and full opportunity was furnished to intending bidders.
' In the case of Karachi, we have been informed that publication in newspapers is also required by rule 339 of the Sind Chief Court Rules and, therefore, that is the customary mode of publication in Karachi."
' In the present case the proclamation of sale was published in the newspapers. It was affixed on the Court Notice Board the property and the area police station. This according to the mandate of the Supreme Court is a substantial compliance of the provisions of law and therefore the contesting decree-holders have failed to establish that any irregularity was committed.
6. The learned counsel for the decree-holders insisted on the alleged irregularities said to have been committed in the sale but was not able, in spite of repeated querries, to point out the substantial injuries caused to the decree-holders by such sale. Order XXI, rule 90 in positive terms requires such judgment-debtor to prove that he has sustained substantial injury by reason of such irregularity. In such circumstances in Ghulam Abbas's case the Supreme Court has observed as follows "In the absence of proof of any such substantial injury, no sale can be set aside. It is for this reason that we repeatedly the learned counsel for the appellant to show us as to how he had been prejudiced by the irregularities complained by him, but he was not in a position to do so. He has not been able to show us that, by reason of the incorrect statement of the decretal amount in the sale Proclamation, any bidder was deterred from bidding at the auction or that the appellant was in any way prevented from offering to the auctioner the amount which he thought was rightly payable under the decree. He has not also been able to show us that the non-publication of the proclamation of sale by beat of drum has kept away any prospective bidder or, if there had been publication by beat of drum in a big city like Karachi at or near the site, there would have been more bidders."
' This observation squarely covers the present case. Except the statement of the decree-holder that they have 'suffered substantial injury no evidence has been produced to show that the auction price of Rs, 11,50,000 was inadequate or that due to irregularity in the sale proclamation many bidders were prevented from taking part in the auction. In the absence of any proof to substantiate that substantial injury was caused due to the alleged irregularity committed in the publication of sale proclamation, or auction proceedings it is not possible to set aside the sale merely on the sole ground that some irregularities have been committed.
7. Mr. Khalid Latif the learned counsel for the judgment-debtors Nos. 4 and 10 has contended that taking the facts together particularly the irregularities committed in the proceedings the Court should infer that substantial injury has been caused According to the learned counsel substantial injury is implicit in material irregularity. In support of this contention the learned counsel has referred to Lakhshmi Devi v. Mankad Kan war (1). A perusal of this decision makes it clear that it does not support the contention of the learned counsel for the judgment-debtors. It was held that where substantial injury is alleged to be implicit in the material irregularity set out in the application it would be too technical to hold that the application should be dismissed on the preliminary ground that no specific or express averment has
(1) AIR 1965 SC 834 been made that substantial injury has been suffered by the judgment-debtor. This observation does not mean that substantial injury is implicit in material irregularity or that where material irregularity is established it should be presumed that it has caused substantial injury. The determination of this fact depends upon the fact and circumstantances of the case which a judgment-debtor should prove. It was observed by the Supreme Court of India that before an application made under Order XXI, rule 90 can succeed the applicant has to show that the impugned sale was vitiated by material irregularity or fraud in publishing or conducting it. It is also necessary to show that in consequence of the said irregularity or fraud he has sustained substantial injury.
8. The next contention of the learned counsel for the judgment-debtors is that as the property was not attached in terms of Order XXI, rule 54 the sale is void. The object of rule 54 providing attachment is to give notice not only to the judgment-debtor but also to public not to accept any alienation from him. The attachment prohibits the judgment-debtor from selling the property. Such an attachment is effective only after an order of attachment is served on him. Such attachments are made to protect the interest of the decree-holder and judgment-debtor both. Any alienation made after the order of attachment but prior to it having been proclaimed and effected is valid.
The contention that sale of property by Court without attachment is void does not seem to be correct. Section 51, C. P. C. Empowers the Court to enforce execution by attachment and sale or by sale without attachment of any property. This power is however subject to and is regulated by the Rules, The Rules prescribe a procedure for sale of property which requires it to be attached but as held in Ghulam Abbas's case these rules are not mandatory and their breach does not vitiate sale.
If any objection to the legality of the execution proceedings on this ground is taken before the sale then the Court would pass order of attachment and comply with the provisions of the Rules. But where no such objection has been taken during execution proceedings and the sale is challenged after it has taken place on the ground that the property was not attached, then merely on this ground the sale cannot be set aside. Reference can be made to Ghulam Abbas's case and Gopal Chandra v. .Ramesh Chandra and another (I). So is the case here also.
9. The learned counsel for the judgment-debtors has referred to Sawami Nat ha v. Krishna Sawami (2). No doubt failure to attach the property is an irregularity but unless it is established that such an irregularity has resulted in substantial injury to the Judgment-debtor sale cannot be set aside. In Swami Matha's case relied on behalf of the Judgment-Debtors it was observed as follows :- "As regards the second contention that the Court has no jurisdiction to sell the house as the attachment has ceased it is to be observed that this Court has held in a series of cases that a sale of immovable property without previous attachment is not null and void and that the omission to attach before sale is only an irregularity which renders the sale liable to be set aside if substantial injury is proved."
' For this observation reliance was placed on Maharaja of Venkatagiti (3) Leicester & Co. v. S. P.
Mullick (4) and Kee1angoti Narayana Tanri v. Nagappa and others (5).
(1) PLD 1961 Dacca 492 (2) AIR 1947 Mad. 213
(3) I L R 1930 Mad. 255 (4) 80 I C 498
(5) Al R 1918 Mad. 126=37 IC 964
10. Mr. Khalid Latif the learned counsel for the judgment-debtors has next contended that as the sale has been held within 30 days of the publication proclamation it was illegal and sale stands vitiated. The sale proclamation was placed before the Nazir on 5-8-1981 and according to the bailiff's report on 16-3-1981 it was affixed on the Court Notice Board and pasted on the property. The learned counsel has referred to the provisions of Order XXI, rule 68 which provides that no sale of immovable property shall without the consent in writing of the judgment-debtor take place until after the expiration of at least 30 days calculated from the date on which the copy of the proclamation has been fixed on the Court House. In the present case it is clear that the auction was held within 30 days of the affixation of the sale proclamation on the Court Notice Board. In this regard the learned counsel for the judgment-debtors has _relied on Jogindranath and others v. Sh.
Nabi Nawaj and others (1) where it was held that the failure to comply with the provisions of Order XXI, rules 67 and 69 could not alone render a Court sale, a nullity unless it is covered by Order XXI, rule 90, C. P. C. In this case, also the well-settled principle was followed that mere irregularity or non-compliance of the procedure prescribed for sale of immovable property will not make the sale void or a nullify unless it is proved that such non-compliance or irregularities have caused substantial injury to the judgment-debtor. The provisions of Code of Civil Procedure regulating the sale of immovable property do protect the interest of the judgment debtor and are designed to ensure widest possible publicity of the sale so that no harm may be caused to the judgment- debtor. Unless non-compliance of such provisions results in substantial injury to the judgment- debtor the sale cannot be set aside. The contesting judgment-debtors were represented by Advocate but they allowed the sale to be confirmed without objection. In the present case the judgment-debtors have not produced any evidence to substantiate their claim for substantial injury. No evidence has been produced to show that during the relevant period properties of similar nature and accommodation in the locality were sold at much higher value. As the judgment- debtors have failed to prove this important ingredient upon which rests their case this application is dismissed.