Authored By : Loftus Richard Tottenham, Trevelyan

Loftus Richard Tottenham and Trevelyan, JJ.

1. This is a rule obtained by one of two judgment-debtors toshow cause why a sale held in execution of a decree against him should not be setaside, as being null and void for default in the issue of a fresh proclamationunder a. 291 of the Code of Civil Procedure, upon an adjournment being grantedat the instance of the other judgment-debtor, who had waived any freshproclamation.

2. The present petitioner was no party to the petition foradjournment.

3. The Courts below held, that the omission to issue a freshproclamation amounted only to an irregularity, and that no substantial injuryhad thereby been caused to the petitioner.

4. Another ground, urged for setting aside the decree of theLower Appellate Court, is that that Court had no jurisdiction to hear theappeal, inasmuch as the execution proceedings were commenced before the 1st ofJuly 1888, and when an appeal from the Munsifs order confirming the sale wouldlie to the High Court and not the District Judge.

5. It is not contended that there was any irregularity ordefect in the original sale proclamation. And so far as the proclamation thatwas published is concerned, there has been no transgression of the provisionsof Section 290.

6. It has been argued by the vakeel for the petitioner, thatSection 290 must be equally followed when under Section 291 an adjournment hasbeen allowed, unless all the judgment-debtors waive the issue of a freshproclamation. But we think it clear that this is not so.

7. For supposing that under Section 291 a sale has been, inthe discretion of the Court, and not upon application, adjourned for 15 days,and a fresh proclamation has to be published, it would be impossible to hold,that under Section 290 it would be illegal to hold such adjourned sale, untilafter the expiration of at least thirty days from the date of the fixing up ofthe fresh proclamation in the Court of the Judge.

8. The High Court at Allahabad has held in Rameshur Singh v.Sheodin Singh I.L.R. All 510 that whereas the doing of a thing by the Courtwhich is prohibited by law is an illegality, which renders the thing done nulland void, the omission to do something which is prescribed may be only anirregularity. And in a case very similar to the one before us, this Court hasheld in Satish Chunder Rai Chowdhuri v. Thomas I.L.R. Cal. 658 that theomission to publish a fresh proclamation was only an irregularity. We see noreason for dissenting from this opinion: and we find that the cases cited onbehalf of the petitioner are not on all fours with this one.

9. As regards the objection taken to the jurisdiction of theDistrict Judge to hear the appeal, it was not seriously pressed before us; andwe are not disposed to attach any weight to it. The amendment of the ProcedureCode did not repeal the previous law, but merely altered the forum of appeal insuch cases, and we think the District Judge had jurisdiction.

10. The rule must be discharged with costs.

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Rameshur Mundul and Ors.vs. Bagal Chunder Mookerjee(14.05.1891 - CALHC)