TMI Blog2006 (4) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... f a suit for partition between the respondents or their predecessors-in-interest. The property was not partible. The Trial Court accordingly directed sale of the suit property. An Advocate Commissioner was appointed to sell the suit property. The order directing sale required the Advocate Commissioner to sell the suit property in auction between the parties to the suit or in public auction, if the parties are not coming forward after following the due procedure like giving wide publicity . 3. The Advocate Commissioner issued notice to the parties to the suit through their respective advocates on 25th June, 2002. The notice said that the warrant of commission would be executed by the sale of the property on 30th June, 2002 by auction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent No. 1 to bring the said Sidhique to court to deposit the sum of ₹ 18 lakhs. The respondent No. 1, however failed to produce the alleged purchaser. Three such opportunities were given by the District Judge. On all three occasions, the said Sidhique did not present himself in Court. The District Judge then passed an order holding that adequate notice had been given by the Advocate Commissioner for publishing the sale. The Respondent No. 1's contention that the sale should have been published in the newspaper was rejected on the ground that no such direction had been given by the Court. The Trial Court also noted that the Respondent No. 1 was not interested to purchase the property himself and had failed to substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Rule 67(1) correctly. Although wide publicity had been directed to be given by the Trial Court, there was no direction to publish the advertisement in any newspaper. It was further said that there was no material irregularity in the conduct of the sale which could justify the High Court in setting it aside. It was further contended that the alleged offer brought forward by the respondent No. 1 was not followed up by any actual deposit and could not form the basis of the High Court coming to the conclusion that the property has been sold for at an undervalue to the appellant. 9. According to the learned Counsel appearing on behalf of the respondent No. 1, by using the word wide publicity , the Trial Court had intended that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale. (See: Dhirendra Nath Gorai and Suibal Chandra Shaw and Ors. v. Sudhir Chandra Ghosh and Ors. [1964]6SCR1001 ; Jaswantlal Natvarlal Thakkar v. Sushilaben Manilal Dangarwala and Ors. AIR1991SC770 ; Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by and Ors. [2000]1SCR1045 . 12. A charge of fraud or material irregularity under Order XXI Rule 90 must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge. In the case before us, no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory, so long as the sale notice was proclaimed at or adjacent to the property. Admittedly, the Advocate Commissioner distributed the pamphlets advertising the sale in the locality several days prior to holding of the sale and also affixed a copy of the sale notice on the property itself. 13. In any event the respondent No. 1 has been unable to establish that he had suffered substantial injury by reason of any irregularity or fraud. The lack of notice under the Partition Act, 1893 to the respondent No. 1 was immaterial as it was not the appellant's case that he would have purchased the property. No such intention has ever been expressed. The respondent No. 1's only grievance is that the property could have fetched a higher value. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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