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TMI Blog1982 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ent years 1964-65, 1965-66, 1967-68 and 1968-69. The amount to be recovered under this certificate was Rs. 15,654. The dues for the year 1964-65 were Rs. 13,206 and the remaining amount was for the other years. The petitioner's house was attached some time in November, 1971. Proclamation was issued on 16th December, 1971, for sale to be held on 19th January, 1972. On this date the TRO adjourned the sale to 14th February, 1972, on the ground that the highest bid offered was inadequate to cover the amount of arrears. proclamation for sale was again issued on 11th February, 1972. Respondent No. 3 was the highest bidder on that date and his bid was accepted. The petitioner had in the meantime filed an appeal to the Tribunal in the assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be held that as the petitioner's appeal was substantially allowed by the Tribunal before any valid confirmation of the sale, the sale became void. The second contention of the learned counsel is that no notice was given to the petitioner before the second proclamation for sale was issued on 11th February, 1972, for the notice in respect of this proclamation was served on the petitioner on 12th February, 1972, and that the absence of prior notice constitutes a breach of the mandatory provision of rr. 53 of Sch, II and so the sale is a nullity. Before examining the validity of these contentions, reference has to be made to the rules contained in Sch. II. When the TRO receives certificate from the ITO for recovery of arrears, he issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in execution of the certificate." " 63. Confirmation of sale. - (1) Where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the Tax Recovery Officer, the Tax Recovery Officer shall (if the full amount of the purchase-money has been paid) make an order confirming the sale, and, thereupon, the sale shall become absolute. (2) Where such application is made and allowed, and where in the case of an application made to set aside the sale on deposit of the amount and penalty and charges, the deposit is made within thirty days from the date of the sale the Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already stated that the scheme of rr. 60 to 63 of Sch. II is the same as rr. 89 to 92 of 0. 21. It has been held by the Supreme Court in Janak Raj v. Gurdial Singh, AIR 1967 SC 608, that if the decree in execution of which a sale is held is set aside in appeal before confirmation of the sale, it has no effect on the validity of the sale because under 0. 21, r. 92, which makes it incumbent on the executing court to confirm the sale, it is not open to the executing court to refuse to confirm the sale on the ground that the decree has been set aside. The same principle must apply here. Even though the petitioner substantially succeeded in the assessment appeal for the year 1964-65, that had no effect on the validity of the auction sale whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was not served on him to pay the arrears, that ground has also to be taken in the application to be made under r. 61. Under the scheme of O. 21, the ground that no notice was given under r. 22 or r. 66 not being merely material irregularity in publishing or conducting the sale will not fall under r. 90. Having regard to the wider scope of r. 61 of Sch. II, we are of opinion that even a ground that no notice was issued to the defaulter before drawing up the proclamation of sale under r. 53 ought to be taken only by an application under r. 61 and that such an objection cannot be otherwise taken. If no application is made under r. 61 on this ground, the confirmation of sale will automatically follow under r. 63. Apart from this, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-sheet of that date goes to show that the petitioner filed an objection at about 3 p.m. The petitioner did not complain about any defect in the proclamation of sale. All that he wanted was that he should be allowed instalments for payment of the arrears and that the sale should not be held. It would thus be seen that the petitioner did not raise any objection that the proclamation was defective or that it was invalid because no notice was issued to him before its preparation even though he was present at the time when the sale was held. In the circumstances, this objection can be taken to be waived. Learned counsel for the petitioner has referred to us the ruling of the Supreme Court in Dhirendra Nath v. Subal Chandra Nath, AIR 1964 SC 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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