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Ram Prasad Vs. Shiva Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All55
AppellantRam Prasad
RespondentShiva Kumar and anr.
Excerpt:
- - rule 66 requires that the sale proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as clearly and accurately as possible several matters and among them any encumbrance to which the property is liable. in the result he found that the appellant had failed to prove that the sale had not been held at the appointed time and that there was no substantial injury to him......less than rs. 3,400 against the present appellant, which sum is said to be now due.3. the decree-holders took out an execution of the decree, but proceeded in a very slovenly manner. they made their application on 7th december 1928, but without any verified statement and without any certificate of encumbrance granted by the sub-registrar. although the important documents mentioned above had not been filed by the decree-holders, the court ordered a notice to issue to the judgment debtor, in order to settle the terms of the auction notification, under order 21, rule 66, civil p.c. and fixed 15th january 1929 for the purpose. on that date the judgment-debtor was absent and the court said that thenceforward proceedings should be taken ex parte against the judgment-debtor. it was.....
Judgment:

Mukerji, J.

1. This is a very unfortunate case and the misfortune to the parties has arisen mainly because everybody concerned, namely the Court, the decree-holders and the judgment-debtor, has neglected the proceedings.

2. A decree for sale on foot of a mortgage dated 9th May 1919 was made in favour of the respondents on 20th May 1928. A decree was made for the sum of something less than Rs. 3,400 against the present appellant, which sum is said to be now due.

3. The decree-holders took out an execution of the decree, but proceeded in a very slovenly manner. They made their application on 7th December 1928, but without any verified statement and without any certificate of encumbrance granted by the sub-registrar. Although the important documents mentioned above had not been filed by the decree-holders, the Court ordered a notice to issue to the judgment debtor, in order to settle the terms of the auction notification, under Order 21, Rule 66, Civil P.C. and fixed 15th January 1929 for the purpose. On that date the judgment-debtor was absent and the Court said that thenceforward proceedings should be taken ex parte against the judgment-debtor. It was found that the decree-holders had not filed the verified statement required by Order 21, Rule 66, Sub-rule 3, and the sub-registrar's certificate required to be filed under Rule 106, Order 21. The decree-holders were directed to produce these documents and also a copy of the decree. Time was given to them up to 1st February 1929.

4. On 1st February 1929, the decree-holders asked for further time and time was granted to them up to 16th February 1929. On that date they produced the verified statement and the sub-registrar's certificate, but did not produce the copy of the decree. They were asked to furnish a copy of the decree and the Court adjourned the case to 12th March so that a date for sale might be fixed in consultation with the amin.

5. On 7th March the learned Subordinate Judge fixed a date for sale which was to be 22nd April 1929. The learned Judge, it appears, entirely overlooked the provisions of Rule 110, Order 21, Civil P.C. which was added long long ago by the Allahabad High Court. This rule required the presiding Judge to note the result of his inquiry under Rule 66 in his own hand-writing. Rule 66 requires that the sale proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as clearly and accurately as possible several matters and among them any encumbrance to which the property is liable.

6. In this particular case, the only thing which the Court settled was the date of the sale and this in the absence of the parties at least in the absence of the judgment-debtor. On the record, we could not find any proceeding in the handwriting of the learned Judge as is required by Rule 110.

7. In our opinion the very salutory rules laid down for the preparation of the sale proclamation have been entirely overlooked. The terms of the sale proclamation were to be settled after notice to the decree-holder and the judgment-debtor and the objection of notice to the judgment-debtor is that he should appear and see what are the declarations of the-decree-holders as to the property, what is the report made by the sub-registrar as to the encumbrance and to state, if necessary, whether those statements were correct or should be modified and if so, in what way? The notice that was issued to the judgment-debtor was issued before the decree-holders had made any verified statement and before they had filed the sub-registrar's certificate. Even if the judgment debtor had appeared on 15th January 1929, nothing could have been done in his presence and as the proceedings went, it would have been incumbent on the judgment-debtor to appear, not-only on a subsequent date, but on several subsequent dates, namely 10th February, then again on 16th February and then again on 7th March 1929.

8. In the verified statement the decree-holders stated that although the sub-registrar's certificate showed that there was an encumbrance of Rs. 10,000 under a mortgage of 1926, they 'did not admit the same.' It appears that the decree-holder did not 'admit' the encumbrance because his encumbrance was of a prior date and the subsequent encumbrance-could not affect the sale under the prior encumbrance. We have looked into the plaint, but could not find the name of the subsequent transferee as a party to the ' suit.

9. The sale proclamation which was issued first showed that there was an encumbrance of only Rs. 1,000 and it was stated as a note that the decree-holders did not 'admit' this encumbrance. The sale which had been fixed fell through and a second sale proclamation was issued and this time the encumbrance was shown as-Rs. 10,000.

10. The property was shown as being worth Rs. 12,000 in the verified statement. of the decree-holders. The property was sold for a sum of Rs. 3,400 and was purchased by the decree-holders. Thereupon the judgment-debtor who is appellant before us came to Court with an application to set aside the sale on the ground of material irregularity in publishing and conducting the sale and a consequent, result of substantial injury.

11. The learned Subordinate Judge noted three points as urged by the judgment-debtor. These were : (1) that the subsequent encumbrance was Rs. 1,000 but was wrongly noted as Rs. 10,000 in the sale proclamation; (2) that the house is worth Rs. 25,000, but was sold for Rs. 3,400; and (3) the sale was not held at the appointed time.

12. The learned Judge refused to hear the appellant on points 1 and 2 and proceeded to consider point 3 alone. In the result he found that the appellant had failed to prove that the sale had not been held at the appointed time and that there was no substantial injury to him. In the result he dismissed the application.

13. We take it that the learned Judge refused to hear the judgment-debtor on points 1 and 2, although he does not say. so, on the ground that Rule 90, Order 21, has been amended by this Court adding the following proviso:

Provided also that no such application shall be entertained upon any ground which could have been, but was not put forward by the applicant before the commencement of the sale.

14. The learned Judge would have been very very right in his opinion if the proceedings in his own Court had not been irregular. The learned Subordinate Judge who fixed the first date for sale as 22nd April 1929 entirely neglected, as we have already stated, to follow the rules laid down for his conduct. He ought to have got the parties before him and then drawn up the terms of the said proclamation with his own hand. If he had made an attempt to do anything of the kind he would have discovered that the encumbrance mentioned by the decree-holders in their verified statements and mentioned in the sub-registrar's certificate was an encumbrance which was not admitted by the decree-holders as subsisting. Thus it might be that the encumbrance had been paid off or that it being a subsequent encumbrance, it was the contention of the decree-holders that it could not affect the sale of the property under their decree based on a prior mortgage. The judgment-debtor's contention is that he was paid Rs. 9,000 out of Rs. 10,000 shown as the encumbrance. These were matters which ought to have been settled by the learned Judge in the presence of the parties. The date fixed for the appearance of the judgment-debtor should have been a date when all the necessary materials had been put before the Court, so that the judgment-debtor, if he appeared could inspect them and gain the-necessary information. Then the judgment-debtor could see whether there was anything which he ought to contest or not. Further, it is a material point for the purchaser to know what is the estimated value of the property to be sold. If there was any dispute about that value, the matter might be ascertained or in certain circumstances, the omission of the price may be justified. Their Lordships of the Privy Council in Saadatmand Khan v. Phul Kuer [1898] 20 All. 412 stated that it was to the interest of the purchaser to know what value the Court put on the property. The decree-holders valued the property at Rs. 12,000, but the sale-proclamation that was printed by the auctioneer does not contain a mention of this value.

15. The result of the neglect of the very salutary rules laid down by the legislature and added to by this Court has been that a property admittedly worth Rs. 12,000 has been purchased by the decree-holders themselves for the small sum of Rs. 3,400. Evidently nobody else, thought of purchasing the property worth Rs. 12,000 when an encumbrance of Rs. 10,000 was alleged to exist.

16. In the result we set aside the sale and send back the case to the Court below with the direction that the execution application shall be proceeded with according to law. The judgment-debtor had paid a sum of Rs. 3,500 towards the decree, in this Court, and the learned Counsel for the decree-holders has expressed a wish to be paid. That amount as the whole or a part of the decretal amount therefore may be withdrawn by the decree-holders, subject to such directions as the Court below may give on this behalf having regard to the fact that the-decree-holders are said to be minors. The parties in this Court will pay their own costs.


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