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Mohamed Ali Vs. Babu Mahabir Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in35Ind.Cas.411
AppellantMohamed Ali
RespondentBabu Mahabir Prasad and ors.
Excerpt:
.....- there is certainly room for the argument that, if the judgment debtors were of opinion that the sale proclamations previously issued were materially defective, they ought to have brought that matter to the notice of the court and that by waiving the necessity for the issue of any fresh proclamation they had in substance expressed themselves as satisfied with the proclamations previously issued. if the judgment-debtors had insisted on the issue of a fresh sale proclamation, they might not unreasonably have asked the court to state clearly in such fresh proclamation the total amount of the decrees which were intended to be satisfied, if possible, by means pf the proposed sale. it is obvious, therefore, that the judgment-debtors were in a far better position to lay before the court..........of the sale it was contended that two irregularities had been committed, viz., that the sale proclamation did not state the amount for the recovery of which the sale was ordered and secondly, that it did not state the approximate value of the property. in connection with this point the following facts are material. the sale had originally been fixed for the 10th of may 1915; the judgment-debtors came into court on that date and by making certain representations obtained a postponement of the sale to the 30th of june 1915. a sale proclamation had been duly issued for the 10th of may and a fresh proclamation was issued for the 30th of june. on the latter date, however, the judgment-debtors again came into court asking for a further postponement. this very unusual indulgence was.....
Judgment:

1. This is a judgment-debtor's appeal in an execution case. The appellant's application in the Court below was to have the Bale of certain immoveable property, which had been held in execution of a decree against him and others, set aside under the provisions of Order XXI, Rule 90, of the Code of Civil Procedure. It was for the appellant to satisfy the Court that there had been some material irregularity in the publishing or in the conducting of the auction sale, and further that he had sustained substantial injury by reason of such irregularity. With regard to the publication of the sale it was contended that two irregularities had been committed, viz., that the sale proclamation did not state the amount for the recovery of which the sale was ordered and secondly, that it did not state the approximate value of the property. In connection with this point the following facts are material. The sale had originally been fixed for the 10th of May 1915; the judgment-debtors came into Court on that date and by making certain representations obtained a postponement of the sale to the 30th of June 1915. A sale proclamation had been duly issued for the 10th of May and a fresh proclamation was issued for the 30th of June. On the latter date, however, the judgment-debtors again came into Court asking for a further postponement. This very unusual indulgence was granted by the Court, but it was granted on the express condition that the judgment-debtors waived their right to the issue of any fresh sale proclamation for the sale, which was ordered to be held on the 2nd of August 1915. The learned Subordinate Judge has remarked that, in view of this undertaking given by the judgment-debtors, they ought not to be permitted to raise objections on matters of form to the sale proclamation, which had actually been issued for the two previous dates. There is certainly room for the argument that, if the judgment debtors were of opinion that the sale proclamations previously issued were materially defective, they ought to have brought that matter to the notice of the Court and that by waiving the necessity for the issue of any fresh proclamation they had in substance expressed themselves as satisfied with the proclamations previously issued. It is not, however, necessary to decide the question on this point alone. The alleged irregularities in the proclamations of sale, if they can be called irregularities at all, were not in this instance material. As a matter, of fact the sale proclamations issued for the 10th of May and for the 30th of June did state the amount for the recovery of which the sale had been ordered. What happened was that before the sale could actually be held, a number of other creditors holding decrees against the judgment-debtors came in and asked for rateable distribution; if the judgment-debtors had insisted on the issue of a fresh sale proclamation, they might not unreasonably have asked the Court to state clearly in such fresh proclamation the total amount of the decrees which were intended to be satisfied, if possible, by means pf the proposed sale. Under the circumstances the omission to state in the proclamations issued for the 10th of May and for the 30th of June the precise amount of claims received from other decree-holders, subsequently to the order directing the sale of the property, can scarcely be called an irregularity at all. It was certainly not material as bearing on the proceedings at the sale actually held. With reference to those proceedings a further point is taken which has to do with the sum required to be realized under the sale: this will be dealt with in its proper place. It is true that neither of the sale proclamations issued attempted to give any estimate of the value of the property to be sold. The property in question consisted of 14 different lots, mostly house property in the town of Gorakhpur, but including a house situated in a garden at some little distance from the town. The judgment-debtors had had due notice of the date fixed for the preparation of the sale proclamation. It has been admitted by the present appellant, while under cross-examination, that all the items of property ordered to be sold, with the exception of three, had been acquired by himself or by other judgment-debtors. It is obvious, therefore, that the judgment-debtors were in a far better position to lay before the Court correct information as to the value of the property sought to be sold than were the decree-holders. The judgment-debtors declined to avail themselves of the opportunity offered them for supplying the Court with all necessary information before the sale proclamation was drawn up. Under the circumstances the decree-holders can scarcely be blamed for not having ventured to put forward any estimate of their own as to the value of property so difficult of valuation as that in question. In any case if there was any irregularity in this matter, there is not a tittle of evidence to suggest the inference that the absence from the sale proclamation of a valuation of the property ordered to be sold had a deterrent effect on the mind of a single intending or possible bidder. It is clear, therefore, that there was no material irregularity so far as the sale proclamation was concerned.

2. We now come to the manner in which the sale was conducted. The Court bailiff, Syed Ghulam Haidar, seems to have been an official of experience. He says he had worked for 16 years as an amin, and for 6 of these years in the city of Gorakhpur. His orders were to sell these 14 lots of house property, or as many of them as it might be necessary to sell, on the 2nd of August 1915. We are satisfied, and it has not been contested on behalf of the appellant, that it was practically impossible to complete in one day the sale of all these items of property. The sale officer, therefore, availed himself of the powers he undoubtedly possessed of postponing the sale from day to day. What the appellant alleges is that when he postponed the sale of an item of property commenced for instance on the 3rd of August, he did not inform any intending or possible purchaser of the date on which he proposed to resume that sale. This is an issue of fact which the Court below has determined against the appellant. There were six witnesses examined for the appellant, partly to prove the value of the property and partly to prove irregularity in the conduct of the sale on the part of the Court bailiff. These witnesses have been adversely criticised by the learned Subordinate Judge. We have been taken through their evidence in detail and are content to say that we regard that evidence as fully open to the criticisms pointed out by the learned Subordinate Judge. The statements of one or two of the witnesses, such as Thakur and Ganesh Prasad, are of no practical importance, i.e., that they might substantially be accepted without proving any irregularity in the conduct of the sale. The witness Wazir, who makes very definite allegations against the sale officer, is discredited in cross-examination, and we agree with the Court below in holding that he was not speaking the truth. With regard to the witnesses Mahomed Salim, Ram Charittar and Munni Maharaj, it might be said that portions of their evidence could he accepted without their materially affecting the case, while as regards other portions the learned Subordinate Judge has given good reasons for considering their evidence unreliable. The amin, Syed Ghulam Haidar, was tendered for examination: he was examined and cross-examined at length. The report sent in by him had been prepared, and was in the hands of the Court, before these objections to his proceedings were put forward by the appellant. It bears out in the main the evidence given by the amin, though it does seem to be true that in one or two instances the amin, when postponing the sale of a particular item of property from the 3rd or 4th of August to the 6th of August, does not appear to have distinctly stated the hour at which he would resume the sale. His evidence shows that he gave a general notice that he would resume the work of selling these items of property at noon on each successive day, and we think we may take it that, with regard to those items of property in respect of which he did not specify a later hour of the afternoon as the hour for the resumption of the sale, he intended it to be understood, and the purchasers did in fact understand, that the work would be resumed at noon, or as soon after as practicable. It may be noted that most of the items of property concerned are situated within a distance of one furlong, although one piece of property is situated at a greater distance. So far as giving the intending purchasers reasonable, notice of the date and hour at which the sales would proceed is concerned we think that, if there was any irregularity in the proceedings of the amin, it was not such as to deserve to be called a material irregularity.

3. Two further points were raised, apart from the manner in which the sales were conducted.

1. It has already been explained that this was a case in which a number of decree-holders were claiming for rateable distribution. Shortly before the date of the adjourned sale the decree-holders jointly petitioned the Court. Their object was to have it made quite clear that the sale of the attached property was not to be limited to the extent necessary in order to bring in the sum of Rs. 9,121, which was the amount stated in the sale proclamation issued for the 30th of June as the amount for the recovery of which the sale had been ordered. The decree-holders did not submit, and were not asked to submit, a detailed schedule of their claims, but they stated that the total amount required to satisfy all of them might be estimated at approximately Rs. 24,000. On this the Court below passed an order directing the sale officer to proceed with the sale of the attached property, lot by lot, until he had realized money enough to secure payment to the decree-holders as a body of a sum of about Rs. 24,000. As a matter of fact, the amin actually sold 13 out of the 14 lots under attachment, and he realized in all a sum of Rs. 29,890. On looking into this matter in detail, we find that the amin has in fact complied with the directions given him by the Court. By the evening of the 7th of August he had sold 12 lots of property bringing in a total sum of Rs. 24,040 only. If from this the expenses of the sale be deducted, it is obvious that he had not in hand a sum sufficient to leave a net balance of Rs. 24,000 for distribution amongst the decree-holders. There were two lots left to be sold, viz., Nos. 2 and 13. No cause has been shown, either in this Court or in the Court below, why the amin should have been held bound to precede by preference to the sale of lot No. 2 rather than the sale of No. 13. As a matter of fact he actually sold lot No. 2 completing the sale on the 8th of August 1915, and realizing thereby a sum of Rs. 5,850. This is how he came to realize a sum in excess of the limit of Rs. 24,000 laid down in his instructions. But in the absence of anything to show that the amin was in error in selling lot No. 2 rather than lot No. 13, it cannot be said that he was guilty of any irregularity in the matter.

2. The last objection taken to the proceedings of the sale officer has to do with the disposal of six lots of property which were knocked down to one Syed Wajid Ali Shah. One of these lots was knocked down to this purchaser on the 5th of August. The others were purchased by him on the 6th, 7th and 8th of August. Strictly speaking, according to the rules, Wajid Ali Shah ought to have been required to deposit one-fourth of the purchase-money for each lot as it was knocked down to him. He seems, however, to have represented to the sale officer that he intended to bid for a number of lots and he asked to be allowed to deposit his one-fourth share of the purchase-money as soon as the sales had all been concluded, instead of at the conclusion of the bidding for each particular lot. The sale officer took it upon himself to grant this permission and Wajid Ali Shah in fact deposited his one-fourth share of the total purchase-money for the six lots bought by him on August the 8th, 1915, after he had become the auction-purchaser of lot No. 2 sold on that date. It. Is contended for the appellant that this procedure on the part of the sale officer is something even worse than a material irregularity and is sufficient in itself to vitiate the sales concluded in favour of this particular purchaser. Authority for this proposition is sought in the case of Intizam Ali Khan v. Narain Singh 5 A. 316 : A.W.N. (1883) 38. We find that the decision in that case was expressly overruled by a Bench of this Court in Ahmad Bakhsh v. Lalta Prasad 28 A. 238 : A.W.N. (1905) 263. The view there taken was that subsequent decisions of the Privy Council had made it clear that the decision in Intizam Ali Khan's case 5 A. 316 : A.W.N. (1883) 38 could no longer be regarded as good law. On behalf of the appellant, however, our attention has been called to a still later case viz, Amir Begam v. Bank of Upper India Limited 30 A. 273 : A.W.N. (1908) 107 : 5 A.L.J. 336. It is certainly curious to note that the learned Judges who decided this case, held themselves obliged, apparently with reluctance, to follow the principle laid down in Intizam Ali Khan's case 5 A. 316 : A.W.N. (1883) 38 and to apply that principle to the facts before them. Their attention was not drawn to the ruling in the case of Ahmad Bakhsh v. Lalta Prasad 28 A. 238 : A.W.N. (1905) 263 and it is difficult to say what their decision might have been if their attention had been so drawn. At any rate, for the purposes of the present case it is sufficient to point out that the facts before the Court in Amir Begam v. Bank of Tipper lndia Limited 30 A. 273 : A.W.N. (1908) 107 : 5 A.L.J. 336 were materially different from those now before us and that the point which the Court had actually to determine was not the same. We consider, therefore, that in so far as we are bound by authority, it is the ruling in Ahmad Bakhsh v. Lalta Prasad 28 A. 238 : A.W.N. (1905) 263 which we ought to accept as the latest exposition of the views of this Court on the point. Moreover, we find ourselves in agreement with the views there expressed. We are of opinion, therefore, that though the sale officer in the present case was guilty of irregularity in his dealings with the purchaser, Syed Wajid Ali Shah, this circumstance alone does not necessitate a decision in favour of the present appellant. It is for the appellant to satisfy us that the irregularity thus committed was material, in that it caused him substantial loss. There is not the slightest reason for supposing that any injury resulted from this particular irregularity. If the sale officer had informed Wajid Ali Shah at once that he would be required to comply strictly with the rules on the subject of the deposit of 25 per cent. of the purchase-money, it is probable that Wajid Ali Shah would have made arrangements so to comply, If he had not done so, the natural result would have been the withdrawal from the scene of one bidder who seems, so far as we have been able to judge, to, have benefited the judgment-debtors by forcing up to an appreciable extent the prices of those items of the attached property which were purchased by him after his first purchase, which was concluded on the 5th of August.

4. We have said enough to justify the conclusion we have arrived at that the appellant has failed to make out his case. We may, however, profitably add a few words on the general question, i. e., whether as a matter of fact any substantial injury is proved to have been suffered by the judgment-debtors as a result of this auction-sale. The judgment-debtors have throughout been extremely vague in their valuations of the attached property. Even when raising the point in their application to have the sale set aside, they did not produce their own purchase-deeds in respect of any of the houses in question, or offer any direct evidence as to the sums expended by them on those purchases. They contented themselves with a somewhat elastic valuation of each of the items of the property, put forward by the appellant in his deposition, and partially corroborated by statements made by one or two of his witnesses such as Ram Charittar and Muhammad Salim. Then, according to the appellant himself, the property as a whole sold for about 66 per cent. of its market value; which in the case of forced sale is not so low a proportion as to raise any overwhelming presumption of material injury to the owners of the property. It has been sought to concentrate the attention of the Court particularly on one or two items such for example as item No. 14. The learned Subordinate Judge, as pointed out in his judgment, gave satisfactory reasons why this particular item should have fetched, at auction, an amount considerably below the estimate of its value put forward by the appellant and his witnesses. On this part of the case as a whole, we feel no hesitation in remarking that the evidence for the appellant does not satisfy us that the property in question sold for substantially less than its fair market value, or, at any rate, for less than it might reasonably have been expected to fetch on a sale held under the orders of the Court.

5. It is worth while to remark in this connection that the two postponements of the sale obtained by the appellant on the 10th of May and on the 30th of June were obtained by him, on the plea that he hoped to dispose of the property in question by private treaty in a manner advantageous to himself. It is clear that any negotiations which the judgment-debtors may have entered into for this purpose must have broken down, and this circumstance alone suggests the inference that the value of the property in question in the open market was not materially greater than the total amount of the decrees which the judgment-debtors were under the necessity of satisfying. If this is the case, the realization of Rs. 29,890 by auction sale of 13 out of 14 items of the attached property would seem, on the face of it, to be a result distinctly favourable to the judgment-debtors.

6. For these reasons we are of opinion that there is no force in this appeal, and we dismiss it accordingly with costs, including fees on the higher scale. The costs awarded in favour of the respondents will be distributed amongst them in proportion to their respective interests in the subject-matter.


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