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Civil Petition for Special Leave to Appeal No. 87 of 1968, decided on 28th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 18th December 1967, in Civil Revision No. 56 of 1967).

--O. XXl, r. 90‑Setting aside sale in execution of decree Proclamation of sale not published‑Mere fact that publicity charges had been paid would not show that proclamation had been facade‑Sale, held, rightly set aside.

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--S. 115‑Concurrent findings of lower Courts‑Can be interfered with in revision it findings are based on no evidence.

Mian Hidayat Ali Tiab, Advocate Supreme Court instructed by Siddiq & Company, Attorneys for Petitioner.

Nemo for Respondent.

Date of hearing : 28th June 1968.

‑By this petition for special leave to appeal the petitioner seeks to challenge the order of a learned Single Judge of the High Court of West Pakistan at Peshawar by which he reversed the orders of the Courts below and set aside a sale held in execution of a money decree.

The respondent judgment‑debtor filed a petition under Order XXI, rule 90 of the Code of Civil Procedure for setting aside the sale held in execution of a money decree on the ground that the said sale had not been conducted in accordance with law. His main objection was that the sale proclamation was not published at all in this case.

The decree‑holder, auction‑purchaser in support of his contention that sale had been duly published, relied on a receipt to show that 75 paisas had been deposited with the Municipal Committee as publicity charges.

The learned Single Judge has rightly pointed out that "the mere fact that the amount was deposited would not show that the actual proclamation was made."

The learned Judge then correctly observed :‑

"The legal position in this respect is clear and it is this that the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and the omission to have the drum beaten as required by the rules is a material irregularity which shall vitiate the sale."

We are unable to accept the contention of the learned counsel that payment of 75 paisas to the Municipal Committee should b: regarded as sufficient proof of the sale having been published b) beat of drum:

The next contention .of the learned counsel is that the learned Single Judge was not justified in disturbing the concur rent findings of the Courts below on this point. As their findings were based on no evidence, the learned Single Judge acted within his power. in interfering with the said findings. It will suffice to say that as there was material irregularity in publishing and conducting the sale, the revisional power under section 115 of the Code of Civil Procedure was fully attracted to this case.

For the reasons stated above we see no ground for interference and dismiss this petition.

Leave refused.

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