GHULAM ABBAS vs ZOHRA BIBI AND ANOTHER

1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of an order of a Division Bench -of the High Court of Sind & Baluchistan in Letters Patent Appeal No. 175 of 1970 dismissing in limine an appeal filed by the appellant herein against the order of a learned Single Judge of the same High Court confirming the auction of the appellant's property bearing No. S.-27/34 situated at Modern Co-operative Housing Society Ltd., Karachi, in execution of a decree in Original Suit No. 240 of 1967.

2. It appears that on the 18th of September 1967, respondent No. 2 filed a suit on the original side of the Karachi seat of the former High Court of West Pakistan for the recovery from the appellant of a sum of Rs. 75,000 said to have been borrowed by the appellant in 1963 for the purchase of this very property. Interest was payable on this amount at 9 % per annum. Interest was paid at that rate up to 30-6-1966. The plaintiff in the suit, therefore, claimed Rs. 83,156 as principal and interest due up to the date of the suit and further interest at 9 % per annum. He also prayed for a declaration that the property, mentioned above, was under an equitable mortgage by way of security for the re- payment of the debt.

3. This suit was decreed in preliminary form on the 27th of May 1968, for Rs. 86,469 with costs but interest on the principal amount was allowed only at 6 % per annum from 19-9-67, I.e., from the day after the date of the institution of the suit.

4. Against this preliminary decree, the appellant went up in Letters Patent Appeal No. 173 of 1968, but, on the 21st of Febru--ary 1969, this Letters Patent Appeal was disposed of by a consent order to the following effect:- That the preliminary decree would be maintained with only the modification that the rate of interest allowable on the principal amount would be 7 --% and not 9 % Furthermore, that if the appellant makes payment of the decretal amount within one month of the date of the final judgment, then the plaintiff in the suit would give a remission to the extent of Rs. 12,046.

5. On the basis of this consent decree, a final decree was drawn up on the 28th of April 1969, but the appellant did not pay the decretal amount within a month of the drawing up of the final decree.

6. Hence the decree-holder (respondent No. 2 herein) started execution proceedings (Execution Case No. 46 of 1969) for the sale of the property. The sale proclamation was settled on notice to the appellant on the 30th of May 1969, and it was issued on the 20th of September 1969, shoving that the decretal claim was Rs. 99,446 with costs and interest at 9 % up to the date of the sale, which was scheduled to be held at 3-30 p.m. Of the 23rd of October 1969, at the site. The approximate value of the property was also shown as Rs. 1,65,000.

7. The sale proclamation was, according to the bailiff's reports, submitted on the 20th of September 1969, and the 23rd of Octo--ber 1969, respectively, duly made over to the Deputy Nazir, High Court, for affixation at a prominent place in the Court premises and was also affixed by the bailiff himself on the property to be auctioned on the 20th of September 1969.

8. Again, on the 24th of September 1969, the bailiff himself affixed copies of this notice on the High Court Notice Board, on the Karachi Municipal Corporations Notice Board, on, the Notice Board at the office of the Chief Assessor, Municipal Corporation, and the Notice Board of the Commissioner's Office. A copy was also affixed by the bailiff on the District Court Notice Board, the Notice Board of the Deputy Commissioner, and the Notice Board of the nearest police-station (vide page 78 of the Paper Book).

9. Thereafter, the appellant and the decree-holder both filed applications under Order XXI, rule 69, read with section 151 of the Civil Procedure Code, for the adjournment of the sale to 23-12-69 on the ground that the appellant bad represented to the decree-holder that he would raise the decretal amount within that date, if the adjournment is granted. The appellant also agreed to bear the costs of the adjourned sale and to waive fresh proclamation under rule 67 of Order XXI, Civil Procedure Code. The order passed on this application has not been placed on the record, but, evidently, the sale was postponed, for, on 23-12-69, the appellant filed another application praying for further post--ponement of the auction-sale for two months to enable him to sell the property by private arrangement.

10. On this application, a learned Single Judge issued an ad interim order staying the auction proposed to be held on 23-12-69 and directed notices to issue for the hearing of the application on 12-1-70.

11. In the meantime, the decree-holder also filed an application praying that the auction-sale be not delayed.

12. Both these applications came up for hearing together on the 22nd of January 1970, and the same learned Single Judge, who had passed the interim order, rejected the appellant's objection and refused to further postpone the auction.

13. It appears from the order of the learned Single Judge that although nearly half the period of two months had already passed and a further month was to elapse before the sale could actually be held again yet, the learned counsel for the judgment-debtor had to admit before the Court that his client had not been able to find any private purchaser and that he would be able to nego--tiate a private sale only if an injunction order issued in another suit (No. 445 of 1969) was vacated.

14. After this, the auction was scheduled to be held on the 18th of March 1970, but, on the 17th of March 1970, the appellant, again, put in another application for the postponement of the sale mainly on the ground that the date fixed for the sale was the 8th or 9th of Moharram when no one would attend the sale. He also objected to the sale on the ground that the sale proclama--tion had shown the decretal amount to be much in excess of the amount actually payable by the judgment-debtor, as the modifica--tions made by the order passed in the Letters Patent Appeal had not been taken into account and the preliminary decree had not been amended.

15. Notwithstanding this objection, the auction was held on the 18th of March 1970, and the property was knocked down to the respondent No. 1 as the highest bidder for Rs. 1,50,000. On the 23rd of April 1970, the Nazir submitted the usual reference for the confirmation of the bid. In this report the Nazir stated that, apart from the publications made by the bailiff, as already mentioned, the notice of auction had been published in four newspapers, namely, "the Morning News", "the Awami (Urdu)"., "Millat (Gujrati)" and "Leader (Evening)". In addition, three---hundred hand-bills had been printed and distributed near the vicinity of the premises to be auctioned and at important places of the City. Even on the day of the auction, band-bills were distributed at the site and the terms and conditions of the sale were read over and explained to the persons present there. Some ten persons were present but in the actual bidding, which started at 3-40 p.m., four persons took part and there was active competition between two bidders. After keen competition for about half-an- hour, the highest bid reached was Rs. 1,50,C00, which was offered by one Muhammad Yousaf on behalf of the respondent No. 1, and this was accepted by the Nazir as he considered it to be reasonable.

16. The appellant opposed the confirmation of the sale and filed objections under Order XXI, rule 90, of the Code of Civil Pro--cedure (Miscellaneous Application No. 228 of 1970) on various grounds, namely:-

(1) that there had been material irregularity in the publica--tion of the proclamation of sale by not publishing the same by beat of drum according to Order XXI, rules 54 and 67, Civil Procedure Code;

(2) that the appellant bad been seriously prejudiced by the entry of a wrong and inflated judgment debt in the sale pro--clamation; and

(3) that the appellant had been seriously prejudiced by the holding of the sale on the 13th of March 1970, which was either the 8th or the 9th of Moharram.

17. On the reference for the confirmation of the sale, another learned Judge, on the 31st of August 1970, again, gave another two weeks' time by consent to the appellant to bring a better offer. The appellant was unable to do so, and ultimately, on the 16th of September 1970, the appellant's objections, under Order XXI, rule 90, of the Cede of Civil Procedure, were rejected and the sale was confirmed.

18. It would appear from the order of the learned Judge confirm--ing the sale that each one of the objections were properly con--sidered and dealt with.

19. It is true that the sale proclamation did show the decretal amount to be in excess of what it really should have been by an amount of Rs.2t,373 and this mistake was admitted by the leaned counsel for the decree-holder subsequently on 13-4-70 when the decree was amended; but this does not render the final decree itself invalid, as has been rightly pointed out by the High Court.

20. The order of the learned Single Judge was confirmed by a Division Bench in a Letters Patent Appeal on the 22nd of January 1971, and it is from this judgment and order that the appellant was granted leave to appeal to this Court to consider substan--tially the same questions of law which were raised in the High Court, as they were considered to be questions of general public importance and the value of the subject-matter in dispute was a considerably large amount.

21. Learned counsel appearing for the appellant has urged four grounds in support of his appeal. The first ground is based on sub-rule (3) of rule 69 of Order XXI of the Code of Civil Procedure. This sub- rule reads as follows;--- "Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale."

22. The learned counsel argued that a valuable right had been conferred by these provisions on the judgment-debtor to intervene up to the stage the lot is actually knocked down but the appellant had been deprived of this right by reason of the erroneous and inflated entry of the judgment debt in the sale proclamation.

23. No doubt, this gives the judgment-debtor a valuable right, but there is no evidence at all to show that the judgment-debtor, in the present case, ever tendered any amount to the officer conducting the sale, or paid any amount into the Court which ordered the sale, or asked for the postponement of the sale for this purpose. This complaint of the violation of his right could have been lodged, if it was genuine, at the time of the auction but this was not-,'done even when the appellant on the first postponement of the", sale waived the issuance of afresh pro--clamation. He must have been aware of its contents then. Before a violation of aright can be alleged it must be shown that the right was asserted and denied. To assert this right, at least, the amount which the judgment-debtor considered to be the correct amount, should have been tendered to the officer conducting the sale. This was never done, nor is there any evidence on the record to show that the judgment- debtor was ever in a position to procure this amount. No violation of the right has, therefore, taken place, about which any legitimate complaint can be made at this stage. This is clearly an afterthought.

24. The appellant is also not in a position to show that he has in any way been prejudiced by this mistake or that the mistake alleged prevented any prospective bidder from participating in the bidding.

25. It is pertinent, in this connection, to point out that the appellant has already been treated with considerable indulgence by the Courts below which, not only before the auction but also after the auction but before the confirmation of the sale, gave to the appellant several opportunities to produce any higher bid or offer for the property; but the appellant was not in a position to do so.

26. Even now there is nothing before us to show that the appellant has any better offer.

27. The next contention of the learned counsel for the appellant is that the non-publication of the sale proclamation by beat of drum in the locality, as prescribed by sub-rule (2) of rule 54 of Order XXI of the Code of Civil Procedure, was a non-compliance with a mandatory provision of the law, which vitiated the entire proceedings. Again, it is no doubt true that the sale proclama--tion was not published at some place on, or adjacent to the pro--perty by beat of drum, but due publicity was given to it, as is evident from the reports of the bailiff and the Nazir, both by publication in newspapers as also by the distribution of hand--bills at the site and at other important places in the city. The affixations at other places, as required by the rule, were, of course, duly complied with, and no complaint is made with regard thereto.

28. Learned Counsel, nevertheless, maintains that this defect was fatal, and in support of this contention seeks to place strong reliance on some observations of Lord Shaw in the opinion of the Judicial Committee delivered by him in the case of A. T. K. P. L. M. Muthiah Chetti v. Palaniappa Chetti (AIR 1928 P C 139).

29. In that case what had happened was that an order of attach--ment passed by the Court was never actually levied; that is to say, that there was no proclamation of it at all, and it is in those circumstances that the Judicial Committee made the observation "that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished." The order, as the Board pointed out, "is one thing, the attachment is another. No property can be declared to be attached unless first .De order for attachment has been issued, and secondly in execu--tion of that order the other things prescribed by the rules in the Code have been done".

30. There is nothing in this to show that the provisions of Order XXI, rule 54, of the Code are mandatory and substantialcompliances is not enough.

31. Indeed, it would appear that the view of the Courts has con--sistently 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", as was observed in the case of Tassaduk Rasul Khan v. Ahmad Hussain (20 I A 176) and the onus of proving this prejudice is on the party complaining thereof.

32. The other decision of this Court, in the case of Iltafur Rahman v. Bosten (1968 SCMR 1350), relied upon by the learned Counsel for the appellant, is of no assistance to him. In that case, the sale pro- -clamation had not been published at all. What had happened there was that the decree-holder had relied on a receipt showing that 75 paisas had been deposited with the Municipal Committee as publicity charges. The Court, in the circumstances, very rightly pointed out that this was not, by itself, sufficient to show that the Municipal Committee had actually published the sale proclamation.

33. If there was any doubt as to the correctness of the above view, this doubt is laid at rest by the proviso to rule 90 of Order XXI of the Code of Civil Procedure which clearly prescribes that "no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the appli--cant has sustained substantial injury by reason of such irregularity or fraud".

34. In the absence of proof of any such substantial injury, no sale can be set aside. It is for this reason that we repeatedly re--quested 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 pre--vented from offering to the auctioneer 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 proclama--tion 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.

35. 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- t rule (2)" and in this sub-rule it is provided that the proclamation shall be "by beat of drum or other customary mode". Publica--tion 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 bidders to attend the sale.

36. We are satisfied that such publicity was given and full opportuni--ty was furnished to intending bidders.

37. In the case of Karachi, we have been informed that publica--tion in newspapers is also required by rule 339 of the Sind Chief D Court Rules and, therefore, that is the customary mode of publication in Karachi.

38. Learned counsel for the appellant contends that this is an additional requirement of the rules of the Sind Chief Court which do not abrogate the provisions of the Code of Civil Procedure. We are inclined to agree with him; but, nevertheless, we are of the opinion that these Rules are not mandatory in nature and sub--stantial compliance with them is sufficient. The object of these Rules is to give the order of attachment or the sale proclamation as wide a publicity as possible in the circumstances of the case, having regard to the nature of the property to be sold and the E place of its location. If this has substantially been done and a fair offer received at the auction, then the Courts would be inclin--ed to hold that there has been substantial compliance with the Rules, unless, of course, the appellant can establish by cogent evidence that the irregularity has resulted in prejudice to him. This the appellant has not been able to do in the present case.

39. The third contention of the learned counsel for the appellant is that the sale should not have been held on the 18th of March 1970, as it was either the 8th or 9th of Moharram, which is a day observed with solemnity as a day of mourning by almost all sections of Muslims and no business is transacted on this day. It is again true that the 9th and 10th of Moharram are days which are so observed by a large section of the people; but, again we have no evidence, apart from the Ipse digit of the appellant, that markets were closed on this day in the area where the property is located or that any intending bidder was prevented on this account from participating in the auction. In the absence of such proof, this was not a sufficient ground which by itself could lead to the inference that prejudice must have been caused.

40. The last contention of the learned counsel is that the pro--perty had been undervalued in the sale proclamation and this very fact had led to the result that it had fetched an unusually low price. This was, it is urged, by itself sufficient to warrant the cancellation of the auction. We are not impressed by this argu--ment at all. There is nothing to show that the property was not correctly valued in the sale proclamation. The sale proclama--tion was settled after due notice to the appellant. It was his duty to see that these particulars wore correctly mentioned in the sale proclamation. If he did not take any steps to point out these defects at the relevant time, we cannot help feeling that there is no substance in the contentions now raised by him. If the proper market value was Ra. 1,65,000 and it has fetched Rs. 1,50,000 at the auction, we are of the opinion that a fairly good price has been obtained. It is well-known that in an auction sale of this nature, as a general rule, very high bids are not usually obtained. In the present case, however, we are satisfied that the bid was in every way reasonable, for, the appellant has not even up to this stage been able to procure a better offer.

41. The learned counsel for the appellant has raised no other point but the learned counsel appearing for the auction-pur--chaser has pointed out that this application under Order XXI, rule 90, of the Code was itself, in any event, not maintainable, as under the High Court Rules at least 20%. Of the auction money had to be deposited before making the application. This was not done. This objection, however, was not taken at any stage in the High Court. We are not, therefore, disposed to allow this objection to be raised for the first time in this Court.

42. The decree-holder has sought to put in appearance at this stage, although the appeal had been marked to be heard ex parse as against him. Let his presence be recorded.

43. Since we have come to the view that there is no substance in any one of the points raised by the appellant, this appeal must be dismissed. We accordingly dismiss the same but make no order as to costs, in view of the fact that the appellant is already heavily burdened with debt.