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Sakarlal Jamnadas Vs. Jerbai Sorabji Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal From Order No. 83 of 1932
Judge
Reported inAIR1934Bom348; (1934)36BOMLR681; 153Ind.Cas.899
AppellantSakarlal Jamnadas
RespondentJerbai Sorabji Patel
DispositionAppeal dismissed
Excerpt:
.....in several cases that where a judgment-debtor has been shown to have been aware of defects in the sale proclamation before the date of the sale, and has failed to take action to get them corrected when he could have done so, he shall not be allowed afterwards to object to the sale on the ground of defects in the proclamation in behari singh v. 25): it would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed, and then come forward and..........in several cases that where a judgment-debtor has been shown to have been aware of defects in the sale proclamation before the date of the sale, and has failed to take action to get them corrected when he could have done so, he shall not be allowed afterwards to object to the sale on the ground of defects in the proclamation in behari singh v. mukat singh i.l.r (1905) all. 273 it was held that where, after an inquiry as to the nature of the property, of which the judgment-debtors had notice, the court, in execution of the decree, caused certain immoveable property to be sold by auction as non-ancestral, the judgment-debtors standing by and neglecting to supply the court with any information as to the nature of the property sold, it was not competent to the judgment-debtors subsequently.....
Judgment:

N.J. Wadia, J.

1. This is an appeal against an order of the First Class Subordinate Judge of Thana refusing to set aside a sale of certain property held in execution of three darkhasts, Nos. 366 of 1924, 447 of 1924 and 271 of 1925, which had been filed by respondents Nos. 1 to 8 against the appellant and respondent No. 11, Balkisandas Tulsidas. A considerable amount of property was to be sold. The bulk of it, consisting of lots Nos. 1, 2, 4 to 12 and 14, was sold in the year 1929. The remaining lots Nos. 3 and 13, with which this appeal is concerned, were sold on December 31, 1931. The appellant sought to have the sale set aside cm various grounds. His first contention was that the proclamation of sale with regard to the properties wrongly mentioned that there was a charge of Rs. 31,035 odd on the whole of lots Nos. 3 and 13, whereas as a matter of fact this charge really subsisted only on the property of respondent No. 11 Balkisandas, i.e., the whole of lot No. 3 and half of lot No. 13, lot No. 13 consisting of a house, half of which belongs to the appellant and half to Balkisandas. He also alleged that at the time of the sale there was no subsisting attachment on the property, and that the closing of the sale by the Mahalkari before 5 P.M., when, according to the proclamation, the sale was to be held between the hours of 11 a.m. and 5 P.M., was a serious irregularity which caused substantial injury to the appellant. It was further alleged that the house which was sold was not liable to attachment because it was occupied by the appellant who was an agriculturist.

2. It has been contended on behalf of the respondents that the application to set aside the sale, even if allowed, could affect only the appellant's share of the property (i.e., half of lot No. 13) and could not affect the other half of lot No. 13 and the whole of lot No. 3 with which he is not concerned. Order XXI., Rule 90, of the Civil Procedure Code, allows any one, whose interests are affected by the sale, to apply to the Court to set aside the sale on certain grounds. It seems to me that the appellant comes within the meaning of the term 'person whose interests are affected by the sale '. It is true that as he and Balkisandas were joint debtors under the decree, the judgment-creditor could have sold the share of the appellant alone without selling the share of respondent No. 11 to recover his dues. But there is no question that if the share of respondent No. 11 is wrongly sold for a lower amount, the burden on the appellant's share of the property would to that extent be increased. In my opinion, therefore, the appellant can challenge the sale of the whole property including lot No. 3 and respondent No. 11's share of lot No. 13.

3. The lower Court has held that the appellant is estopped from raising the contention with regard to the improper description of the property in the proclamation of sale because he had been aware of the defect in the proclamation long prior to the sale and took no steps to get the error corrected when it was his duty to have done so. It seems to me that the view taken by the lower Court is correct.

4. It is admitted that the charge of Rs. 31,035 odd was on the property of Balkisandas alone and that the proclamation of sale wrongly shows the charge as subsisting on the whole of lots Nos. 3 and 13 including the share of the appellant. It has not, however, been shown that the wrong description of the property in the proclamation was due to any representation made by the creditors. It appears that the mention of this charge as subsisting against the whole property was first made at the time of the sale of some of the other properties of the judgment-debtors on December 5, 1929, by the Collector. Prior to the sale of the property now in appeal, three proclamations relating to it had been issued : one on May 22, 1931, another on June 24, 1931, and a third in September, 1931. In these proclamations the charge was wrongly shown against the appellant's share of lot No. 13 also. Order XXI, Rule 66, Sub-clause (2), provides that a Court, before drawing up a proclamation of the intended sale of property, shall give notice of it to the decree-holder and to the judgment-debtor. It was the duty of the appellant judgment-debtor to have brought to the notice of the Court the error with regard to his share of the property when he received notice of the proclamation. It has been decided in several cases that where a judgment-debtor has been shown to have been aware of defects in the sale proclamation before the date of the sale, and has failed to take action to get them corrected when he could have done so, he shall not be allowed afterwards to object to the sale on the ground of defects in the proclamation In Behari Singh v. Mukat Singh I.L.R (1905) All. 273 it was held that where, after an inquiry as to the nature of the property, of which the judgment-debtors had notice, the Court, in execution of the decree, caused certain immoveable property to be sold by auction as non-ancestral, the judgment-debtors standing by and neglecting to supply the Court with any information as to the nature of the property sold, it was not competent to the judgment-debtors subsequently to seek to have the sale set aside upon the ground that the property was ancestral and ought to have been dealt with in the manner provided by law in respect of such property. The two decisions, one of the Privy Council in Arunachellam v. Arunachellam (1888) I.L.R. 12 Mad. 19 P.C., and Mohan Lal v. Kali Charan I.L.R. (1927) All. 788, which have been referred to by the learned Subordinate Judge in his order, are to the same effect. In Arunachellam v. Arunachellam their Lordships held that the judgment-debtor having allowed the execution-sale of immoveables to be completed without objecting on the ground afterwards alleged by him, viz., insufficiency of description within the requirements of Section 287, he having been throughout aware of what the description was, the sale is not invalid on this ground alone without more. In the course of their judgment they remarked (p. 25):

It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed,....

5. It was argued for the appellant that in this case the judgment-creditors were equally aware of the defect in the proclamation and that as they too have taken no step's to have the defect remedied, they should not be allowed to take advantage of the sale. In the first place, there is nothing to show conclusively that the judgment-creditors were aware of the defect. The mention of the charge in the proclamation was not first made at their instance, but by the Collector, and it is possible that the error in the proclamation may not have been noticed by the judgment-creditors. Even, however, if they had noticed it and took no steps to have It corrected, there is no reason why the sale, to which they have raised no objection, should be set aside. It is the appellant judgment-debtor who seeks to set aside the sale, and the rulings cited are clear authority for holding that as he was aware of the defect in the proclamation and took no steps at the proper time to have the defect remedied, he cannot now be allowed to have the sale set aside on the ground of this defect.

6. It was contended that the appellant is an agriculturist and that, therefore, under Section 60(c) of the Civil Procedure Code the house could not be attached and sold in execution of the decree against him. This again is an objection which the appellant could and should have raised before the sale, and as he did not do so at the proper time, he cannot be allowed to raise the objection now. Apart from this, there is no evidence to show that the house (lot No. 13) was actually in his occupation. Section 60(c) relates only to a house in the actual occupation of an agriculturist.

7. The other ground on which the appellant seeks to set aside the sale is, that at the time of the sale there was no subsisting attachment on the property. The objection applies only to the property of respondent No. 11, Balkisandas. It is not denied that there was a subsisting attachment on the share of the house (lot No. 13) belonging to the appellant.

8. With regard to Balkisandas' share, it appears that one Jethabhai Deosi, a creditor of Balkisandas, had made a petition to have Balkisandas adjudicated an insolvent and had obtained an ex parte order of adjudication against him. The Official Assignee of the High Court, in whom Balkisandas' estate vested, got his property freed from attachment. On December 19, 1927, the attachment on his property was actually raised. The ex parte order of adjudication was subsequently annulled. The Subordinate Judge was informed of this on July 27, 1928, and he instructed the Collector to proceed with the sale of Balkisandas' share. The learned Subordinate Judge has taken the view that the annulment of the order of adjudication resulted in the property vesting again in Balkisandas, and automatically revived the attachment which had been subsisting on it on the date of the adjudication and which had been raised as the result of the adjudication. I have doubts whether this view can be taken as correct in view of the fact that the attachment had been expressly raised by the Court. But even assuming that there had been no attachment on the property of Balkisandas at the date of the sale, I do not think that this is a sufficient reason for setting aside the sale. There have been conflicting views held by the different High Courts as to the effect of the sale of property without any attachment. In Sorabji Coovarji v. Kala Raghunath I.L.R.(1911)36 Bom. 156 : SC13 Bom. L.R. 1193 it was held by this High Court that where there is no attachment, there can be no order as to the sale of the properties. A different view was taken by the Madras High Court in Subramania Aiyar v. Krishna Aiyar : (1926)51MLJ172 . The view there taken was that the sale of properties in execution without an attachment is not void ab initio. The absence of attachment prior to sale is only an irregularity, and the sale will be set aside on the ground of that irregularity only if the Court is satisfied that the judgment-debtor has sustained substantial injury by reason of that irregularity. The same view was taken by the Calcutta High Court in Kishory Mohun Roy v. Mahomed Mujaffar Hossein S.C(1890) Cal. 188, where it was held that after a sale had been confirmed and a sale-certificate granted to the purchaser, the sale was not to be considered as a nullity merely by reason of the absence of any attachment. In Raja Wazir Narain Singh v. Bhikhari Ram I.L.R (1922) 207 the question was. again considered. The previous rulings on the question including the ruling of this Court in Sorabji Coovarji v. Kala Raghunath were discussed, and it was held that an execution sale of immoveable property is not void merely by reason of an omission to attach the property before the sale. The view taken in the majority of the rulings on this point is that the mere absence of an attachment prior to sale of property in execution amounts to no more than a material irregularity, and is not sufficient, unless substantial injury is caused thereby, to vitiate the sale. This is a view with which, with respect, I agree.

9. It has been admitted by Mr. Dharap for the appellant that it has not been shown that any substantial injury has been inflicted on the appellant owing to the want of attachment. The sale cannot, therefore, be set aside on the ground that there was no subsisting attachment on the property of Balkisandas at the time it was sold.

10. The last objection urged by the appellant against the sale is that there was a material irregularity with regard to the time at which the sale was held. The proclamation about the sale of the property mentioned that the sale would take place between the hours of 11 A. M. and 5 P.M. It was alleged for the appellant that the sale was actually completed at 1-30 P.M. and that in consequence certain persons who had come to bid and who were willing to offer a higher price for the property were prevented from bidding. From the statement of the Mahalkari, who actually held the sale, it appears that the sale was commenced at 12 noon and completed at 3 P.M. as no higher bidder came forward.

11. On behalf of the appellant, certain rulings have been cited to show that as the sale was not held at the time stated in the proclamation, there was a material irregularity sufficient to justify the setting aside of the sale. These cases, however, do not help the appellant. In Basharutulla v. Uma Churn Dutt I.L.R (1889) . 16 Cal. 794 the sale had been held an hour before the time stated in the proclamation. In Babu Ram v. Iman-ullah I.L.R(1926) All. 402 the sale had been adjourned to another day, and the time at which the sale would be held was not mentioned in the proclamation. It was held that that was a material irregularity and that the hour at which the sale was to be held was only of slightly less importance than the day, and ought to be clearly announced to the public.

12. In the present case neither of these rulings can apply. The hours between which the sale was to be held were mentioned in the proclamation and the sale was actually held between those hours. I do not think it can be reasonably held that when the proclamation mentioned that the sale would take place between 11 a.m. and 5 p.m., it must necessarily go on till 5 p.m. There was sufficient notice to the public that the sale would commence at 11 A.M. and it was the duty of intending bidders to see that they were present at the place fixed for the sale from that hour. Once the sale had begun, the Court could not be expected to keep it open till the closing hour if it found that there were sufficient bidders present and the sale could be finished much earlier. I do not, therefore, think that the closing of the sale at 3 P. M. could be held to be an irregularity. No sufficient cause has been shown for setting aside the sale. The order passed by the lower Court is, therefore, confirmed and the appeal dismissed with costs. There will be only one set of costs.


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