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Firm Bindeshri Prasad Bhola Nath and ors. Vs. Raja Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 204 of 1959
Judge
Reported inAIR1961All198
ActsEvidence Act, 1872 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 69 and 90
AppellantFirm Bindeshri Prasad Bhola Nath and ors.
RespondentRaja Ram and anr.
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateAmbika Prasad, ;Ganesh Prasad, ;G.P. Singh and ;L.M. Pant, Advs.
DispositionAppeal allowed
Excerpt:
(i) civil - evidence - section 5 of indian evidence act, 1872 - witness - reliability - held, the mere fact of relationship with a party will not go against the creditability of testimony of witness. (ii) adjournment of sale - order 21 rules 69 and 90 of code of civil procedure, 1908 - sale date fixed after the expiry of fixed date of sale - adjournment should be done before fixed date of sale - held, it is not an adjournment hence the sale is illegal. - - the mere fact that a person is a relation of a party is not sufficient for rejecting his testimony unless there be some further circumstance showing that he is not reliable. this is clearly borne out by what durga prasad p. the order passed by the court below as well as the sale thereby confirmed is set aside......no. 2, for a price of rs. 12,000/-.2. the facts about which there is no dispute are that the sale proclamation under order xxi, rule 66 c. p. c. was issued on 13-11-1956. sub-rule (2) of rule 66 requires that the sale proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor. the service of the notice on the judgment-debtor was completed in this case by publication in a paper by the name 'mazaq'. the judgment-debtor did not appear on the date appointed for the drawing up of the sale proclamation which under the circumstances was prepared at his back. in this document the estimated value of the property to be sold was not entered.3. the date originally appointed for sale was 6-1-1957. the sale proclamation also was issued for this particular date. it.....
Judgment:

J.K. Tandon, J.

1. The above appeal is directed against an order dated 7-7-1959 by which the learned Civil Judge, Mirzapur dismissed the appellants' objection under Order XXI, Rule 90 C. P. C. The first respondent is the decree-holder of a decree for money which he executed by sale of the house, the subject matter of controversy in this appeal. The same was sold on 9/1/1957 and purchased by Ambika Prasad, respondent No. 2, for a price of Rs. 12,000/-.

2. The facts about which there is no dispute are that the sale proclamation under Order XXI, Rule 66 C. P. C. was issued on 13-11-1956. Sub-rule (2) of Rule 66 requires that the sale proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor. The service of the notice on the judgment-debtor was completed in this case by publication in a paper by the name 'Mazaq'. The judgment-debtor did not appear on the date appointed for the drawing up of the sale proclamation which under the circumstances was prepared at his back. In this document the estimated value of the property to be sold was not entered.

3. The date originally appointed for sale was 6-1-1957. The sale proclamation also was issued for this particular date. It appeared that later it transpired that 6-1-1957 happened to be a Sunday. On 7-1-1957 after the appointed date was over the Amin who was the Sale Officer reported to the learned Civil Judge that the sale could not be held owing to 6-1-1957 being a Sunday and requested that some other date might be fixed. On the following date, that is, on 8-1-1957 the learned Civil Judge made an order fixing 9-1-1957 as the date on which the sale will be held. Admittedly no fresh sale proclamation or other notice was issued for this date either to the judgment-debtor or other persons concerned. Nevertheless, the property was put up for auction on this date and ultimately knocked down in favour of respondent No. 2 for the price of Rs. 12,000/-.

4. The appellants thereafter preferred the objection under Order XXI, Rule 90 C. P. C. challenging the validity of the sale on various grounds including the ground that the property was worth for more than Rs. 12,000/- -- according to him it was worth over Rs. 50,000/- -- but had been knocked down in favour of the auction purchaser for the insufficient amount of Rs. 12,000/-. He also pleaded irregularity in the publication and conduct of sale. The trial court dismissed this objection, hence the appeal.

5. It may be necessary initially to dispose of the appellants' claim about the price fetched before other grounds are considered. Because unless the price offered is not shown to be substan tially lower than the value of the house it may not be possible easily for him to establish that any substantial injury has resulted to him. To support this claim, that it was worth over Rs. 30,000/-, he put in besides himself two other witnesses Mahadeo Prasad P. W. 2 and Narsingh Prasad P. W. 3. These persons offered while in the witness box to purchase the house for Rs. 30,000/-. The learned Civil Judge, however, rejected their testimony on the ground that they happened to be related to the judgment-debtor.

The mere fact that a person is a relation of a party is not sufficient for rejecting his testimony unless there be some further circumstance showing that he is not reliable. The criticism levelled against these said two witnesses is unable to show that tile offer made by them was not genuine. But even independently of these witnesses there is sufficient material on the record to convince that the house is really worth substantially more than Rs. 12,000/-. (His Lordship considered these materials and continued).

6. In view of the above material I am prepared to accept that the house is worth at least Rs. 20,000/- if not more. Hence the price fetched which is Rs. 12,000/- only is insufficient.

7. Coming now to the main question in the case, which is whether any irregularity or illegality occurred in the conduct of the sale; admittedly the sale was appointed by the sale proclamation to take place on 6-1-1957, but it was not held on that date, instead was held on 9-1-1957 which the learned Civil Judge appointed on 8-1-1957. The respondents have relied on Order XXI, Rule 69 C. P. C. which provides that the Court may, in its discretion, adjourn any sale to a specified day and hour, and where the adjournment is not for a longer period than fourteen days a fresh sale proclamation need not be issued.

The Sale Officer also has authority under this rule to adjourn a sale but where the sale is taking place in the precincts of the Court he cannot do so without the leave of the Court. It is thus claimed that the Civil Judge had power to fix 9-1-1957 for the taking place of the sale while a fresh sale-proclamation was not necessary to be issued.

8. The authority of a Court to. adjourn a sale is indeed assured by the above provision. But the question which readily arises in the present case is whether the order appointing the sale to take place on 9-1-1957 -- we have noticed that this order was made on 8-1-1957 -- can be held to bo an order adjourning the sale. To adjourn a sale really means that an appointed sale is deferred or postponed to a late date. The rule requires that while adjourning a sale the adjourned date and time shall be specified. It further says that where the sale is adjourned by the Sale Officer and the sale is to take place within the precincts of the Court, the sale officer shall do so with the leave of the Court. The intention is clear that the adjournment, and that is implicit in the word adjourn also, must he ordered before the occasion, namely, the appointed sale has arrived or at least is over.

In any case, where the occasion is allowed to lapse, since there is no longer anything to be postponed or deferred, adjournment is out of question. It is implicit in adjournment that the postponement or deferring of the sale is ordered before the time etcetera previously appointed in that behalf is over. It is then only that it is deferred to a future date and time.

9. In the instant case no order deferring the sale to 9-1-1957 was made on or before the 6th January either by the Court or by the Sale Officer. On the other hand, what actually happened was that the Amin put up a report on 7-1-1957 a day later moving the Court to appoint some date for sale. Beyond taking the above step the Amin took no steps at the spot on 6-1-1957 nor adjourned the sale on that date.

It was on 8-1-1957 that the Court made an order fixing 9-1-1957 for the taking place of sale. This order which wag made on 8-1-1957 cannot be construed to be an order adjourning the sale. It was virtually an order appointing a fresh date for sale i.e., 9-1-1957. There was thus no adjournment of the sale notified for 6-1-1957, indeed this could not be done on 8-1-1957.

10. In the above view of Rule 69 and the facts of this case, the sale held on 9-1-1957 which was neither a sale held on an adjourned date, nor a sale held in pursuance of any sale proclamation published for the particular date in accordance with Rule 66 etc., was invalid for that reason alone. In the case of Rup Kishore v. Collector of Etah : AIR1929All948 the question arose whether an order altering the date of sale made in advance of the date previously appointed amounted to an order adjourning the sale under Rule 69. Having found that no notice about the adjourned date was given to the judgment-debtor etc., it was held in the above case that the order directing the sale was attended with material irregularity.

The facts of the instant case stand on a much stronger footing. Here the fresh date was appointed not in advance but after the expiry of the previously appointed date. At the same time, no notice about this fresh date was given to the parties, and the Amin too took no action at the site of auction on 6-1-1957 to announce to the intending bidders that the sale would be held on this or any other date. There was thus not merely a material irregularity in the publishing and conducting of the sale but by ordering on 8-1-1957 that the sale shall be held on 9-1-1957 the learned Civil Judge committed not merely an irregularity but an illegality.

11. Although it would not be necessary in view of the above finding about the illegality of the sale, to find whether the loss in the price fetched can be traced to the irregularity in the conduct etc, of the sale, still there is in my opinion, no escape from that conclusion also in this case. In spite of the effort to show that there was a large gathering at the auction held on 9-1-1957 the fact remained that there was no publication of this date earlier and the persons who had assembled had arrived there on hearing the beating of the drum then taking place, and whatever bids were offered by them were in ignorance of the condition of the building. This is clearly borne out by what Durga Prasad P. W. has said. I am therefore inclined to hold also that the lower price offered has been due to the irregularity committed in the publishing etc., of the sale.

12. The sale has, therefore, to be set aside and this appeal is bound to succeed on the above ground alone. The other points raised by the appellants in the memo of appeal need not be discussed.

13. In the result, therefore, the appeal succeeds. The same is therefore allowed. The order passed by the court below as well as the sale thereby confirmed is set aside. The appellants will be entitled to their costs from the respondents.


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