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Karan Singh Vs. Sadho Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All192
AppellantKaran Singh
RespondentSadho Ram and ors.
Excerpt:
.....that shall presently appear that the judgment-debtor appellant was prevented by fraud of the decree-holder from putting forward objections in court to the application for execution dated 10th february 1931 and to the particulars submitted by the decree-holder along with that application. in short the objections by the judgment-debtor as regards the nature and value of the property, would have been in the circumstances of the present case, well-founded and not frivolous. therefore the failure of the judgment-debtor to prefer those objections can be attributed to no other cause except to his ignorance about the execution case initiated by the application dated 10th february 1931. 6. the circumstances attending the so-called service by affixation of the notice arc suspicious in the..........and and therefore the inadequacy of the price too, if true, was no ground to set aside the sale. execution first appeal no. 338 of 1931 is against this order of the court below. we are unable to uphold either of the two orders appealed against. we are satisfied for the reasons that shall presently appear that the judgment-debtor appellant was prevented by fraud of the decree-holder from putting forward objections in court to the application for execution dated 10th february 1931 and to the particulars submitted by the decree-holder along with that application.5. we now proceed to deal with the allegation of the judgment-debtor, appellant, that by fraud of the decree-holder he was prevented from getting knowledge of the application for execution dated 10th february 1931. (then.....
Judgment:

Iqbal Ahmad, J.

1. This Execution First Appeal (No. 330 of 1931) is connected with Execution First Appeal No. 450 of 1931. Both appeals are by a judgment-debtor and arise out of proceedings in execution of a final decree for sale. In order to appreciate the points in controversy between the parties, it is necessary to state the facts in some detail. Sadho Ram, the decree-holder,, respondent obtained on the basis of a mortgage-deed a preliminary decree for sale on 27th August 1928, against Thakur Haran Singh, the appellant before us and his minor son Mahendra Singh who was impleaded as a defendant under the guardianship of his mother Mt. Hastun. A final decree for sale was passed in favour of the decree-holder against the said judgment-debtor on 4th May 1929. On 11th June 1929, the decree-holder filed an application for execution of the decree.

2. The application was accompanied by a statement containing the particulars mentioned in Order 21, Rule 66(3), Civil P.C. It was stated in that statement by the decree-holder that the property to be sold, was in possession of the judgment-debtors and his ancestors since the year 1860 and was ancestral property. In order to satisfy itself as to the accuracy of this statement of the decree-holder the execution Court called for a report from the Collector. The Collector reported that the property was ancestral property and accordingly in pursuance of the provisions of Section 68 of the. Code and Government Notification No. 1887/ 1/238 dated 7th October 1911, the execution was transferred to the Collector. An inquiry was then instituted by the sale officer in order to draw up the proclamation of sale. One of the particulars entered in the sale proclamation is the estimated value of the property and the sale officer called for a report from the Tahsil as to the value of the property to be sold. The report was that the value of the property included in the proclamation of sale was Rupees 20,896. The decree-holder objected to this estimated value and the sale officer fixed the value of the property at Rs. 18,000. This valuation was accepted by the decree-holder. But the judgment-debtor objected to the valuation and after further inquiry the estimated value of the property was fixed at Rs. 25,444. Then on 7th February 1931, the decree-holder filed an application stating that the property sought to be sold was non-ancestral and as such could not be sold by the Collector and that he did not propose to proceed with the application for execution. The statement of the decree-holder that the property was non-ancestral was diametrically opposed to the statement contained in the particulars submitted by the decree-holder in the execution Court in pursuance of the provisions of Order 21, Rule 66(3). However on this application the proceedings before the Collector terminated and the record was sent back to the civil Court. Three days after, viz., on 10th February 1931, the decree-holder put in a second application for execution before the execution Court (civil Court) and in the statement under Order 21, Rule 66, described the property covered by the decree for sale as non-ancestral property and the estimated value of the same to Rupees 10,000. Notices under Order 21, Rule 66 were issued to the judgment-debtors fixing 25th February 1931 for the hearing of the objections, if any, to the application for execution and to the statement containing the particulars prescribed by Clause (2), Rule 66. It is common ground that these notices were not served personally either on the judgment-debtor appellant before us or on Mt. Kasturi the guardian-ad-litem of the minor judgment-debtor and that the service was effected by affixation. The judgment-debtor appellant maintains that the decree-holder fraudulently got a bogus report with respect to the service of the notices made by the process server and that neither he nor Mt. Kasturi came to know of the application for execution dated 10th February 1931. We shall advert to the facts relating to service in a moment.

3. On 25th February 1931, the date fixed in the execution case, the judgment-debtor did not appear and the Court fixed 20th April 1931, for the sale of the property, apparently without any inquiry into the question as to whether the property was ancestral or non-ancestral. The attention of the Court was not drawn by the decree-holder either to his earlier statement that the property to be sold was ancestral property or to the report of the Collector, that was to the same effect, and the Court therefore accepted the statement of the decree-holder that the property was non-ancestral property and directed the same to be sold as such by the Amin of the Court. On 14th Aprill931, the judgment-debtor appellant filed an objection to the application for execution dated 10th February 1931, and the statement of particulars of the property to be sold appended to that application. He alleged that by fraud of the decree-holder, he had no notice of the date fixed in the execution case and therefore could not put forward objections to the particulars submitted by the decree-holder. He maintained that the property sought to be sold was ancestral property and therefore could not be sold by the civil Court and that the value of the same was not less than Rs. 30,000 and that the statements to the contrary made by the decree-holder was false. He also prayed that pending the decision of the objections filed by him the sale fixed for 20th April 1931 be postponed. The Court refused to accede to the prayer for the postponement of the sale and the property was actually sold on 24th April 1931. The decree-holder purchased the property for Rs. 10,000 at the auction-sale. Thereafter on 10th May 1931, the objections filed by the judgment-debtor were heard and dismissed on the ground that the objections could be entertained only before the sale and as the sale had already taken place the objections could not be maintained. Execution First Appeal No. 450 of 1931 is directed against this order of 16th May 1931.

4. On 22nd May 1931, the judgment-debtor filed an application under Section 47, and Order 21, Rule 90, Civil P.C. for the setting aside of the sale. In that application he referred to the previous statement of the decree-holder and that report of the Collector that the property to be sold was ancestral property and to the fact that the estimated value of the property sold was fixed by the sale officer at Rs. 25,444 and maintained that the action of the decree-holder in getting the execution case abruptly terminated before the Collector, by means of his application dated 7th February 1931, was deliberate and with a view to gain advantage over the judgment-debtor by perpetration of fraud. He submitted that the statement of the decree-holder that the property covered by the decree was non-ancestral and was of the value of Rs. 10,000 only was false to his knowledge and that the order for the sale of the property as non-ancestral property was obtained by the decree-holder by practising fraud on the Court. He again alleged that the service of notice of the application for execution dated 10th February 1931, was not effected on him because of the fraud of the decree-holder and thus he was prevented from asserting on the date fixed, viz., on 25th February 1931, that the property was ancestral property and could not be sold by the civil Court. He further stated that the sale was not proclaimed in the village nor was proclamation caused to be made by beat of drum and that the sale was vitiated by the fact that the sale officer (Amin) postponed the sale on 20th April 1931, without obtaining any permission from the Court and sold the property on a date not fixed for the sale, viz., on 24th April 1931. He asserted that on account of the fraud practised by the decree-holder and the irregularities mentioned above, the property was sold and purchased by the decree-holder for a very small amount. On these grounds he-prayed that the sale be set aside. This application was also dismissed by the Court on 11th June 1931. The order dismissing the application is brief and conspicuous by an absence of any discussion of the allegation of the judgment-debtor imputing fraud to the decree-holder in the proceedings culminating in the sale of the property. All that is stated in the order is that the learned Judge had been through the record and could discover no material irregularity or fraud and that the oral evidence of the witnesses produced before him was biassed and incredible and and therefore the inadequacy of the price too, if true, was no ground to set aside the sale. Execution First Appeal No. 338 of 1931 is against this order of the Court below. We are unable to uphold either of the two orders appealed against. We are satisfied for the reasons that shall presently appear that the judgment-debtor appellant was prevented by fraud of the decree-holder from putting forward objections in Court to the application for execution dated 10th February 1931 and to the particulars submitted by the decree-holder along with that application.

5. We now proceed to deal with the allegation of the judgment-debtor, appellant, that by fraud of the decree-holder he was prevented from getting knowledge of the application for execution dated 10th February 1931. (Then their Lordships discussed the evidence as to how the service of notice on the judgment-debtor was effected and proceeded) . It is abundantly clear from the facts ed. It is abundantly clear from the facts stated above that the judgment-debtor was vigilant throughout and did not allow the execution proceedings against him to go by default. When the execution case was before the Collector he took exception to the valuation of the property at Rs. 18,000, and it was in consequence of this objection that on further inquiry the value of the property was fixed at Rs. 25,400. It therefore appears incredible to us that if he was cognizant of the application for execution dated 10th February 1931 and of the particulars furnished by the decree-holder in which the decree-holder contrary to his previous statement, had alleged the property to be non-ancestral and had contrary to the finding of the Collector that the value of the property was more than Rs. 25,000 asserted that the property was worth only Rs. 10,000, he would have kept quiet and not taken serious objections to these allegations of the decree-holder. His objections as regards these statements of the decree-holder would have been unanswerable. The property to be sold, having once been declared as between the parties to be ancestral property the decree-holder was bound by the principle of res judicata from asserting that the property was non-ancestral: vide Shazad Singh v. Hanuman Rai AIR 1924 All 704 and Bhupan Saran v. Peare Lal : AIR1931All218 . Further the objections as to the valuation of the property would have been formidable. The finding of the Collector as to the value of the property based as it was on the report submitted by the Tahsil, though not conclusive would have been entitled to grave weight and no Court would have differed from that report on light grounds. In short the objections by the judgment-debtor as regards the nature and value of the property, would have been in the circumstances of the present case, well-founded and not frivolous. Therefore the failure of the judgment-debtor to prefer those objections can be attributed to no other cause except to his ignorance about the execution case initiated by the application dated 10th February 1931.

6. The circumstances attending the so-called service by affixation of the notice arc suspicious in the highest degree. (Then their Lordships set out the circumstances and proceeded). For these reasons we hold that the assertion of the judgment-debtor that the decree-holder fraudulently got a bogus endorsement about the service of notice effected has been made out. In view of this finding arrived at by us, we hold that the Court below was wrong in not entertaining the objections dated 14th April- 1931, filed by the judgment-debtor. The reason assigned by the Court below for dismissing those objections are entirely unfounded. The objections were dismissed by the Court on the ground that they could not be entertained after the sale had taken place. But the Court overlooked the fact that the objections were actually filed before the sale was held and it was due to the action of the Court in not acceding to the prayer contained in the objections for the postponement of the sale that the sale took place before the objections were taken up for disposal. The failure of the judgment-debtor to file the objections on the date fixed, viz., 25th February 1931, was due to the fraud of the decree-holder in connexion with the service of notice issued by the Court. The result is that we allow Execution First Appeal No. 450 of 1931, with costs here and below and allow the objections dated 14th April 1931.

7. We now proceed to consider Execution First Appeal No. 338 of 1931. The finding of the Court before transferring the execution case to the Collector that the property was ancestral property was binding between the parties to the present litigation. Therefore it must be assumed for the purposes of the case that the property to be sold was ancestral property. The sale of such property by the Court Amin was entirely without jurisdiction, as the Collector and the Collector alone could sell such property : vide, Fatmatul Kubra v. Achchi Begum AIR 1914 All 339. Further the evidence produced by the judgment-debtor as regards the sale not having been proclaimed in the village was entirely all the one way. (Then their Lordships considered this evidence and held that the allegation of the judgment-debtor that no proclamation was made in the village has been made out). Again as stated above, the sale was without any reference to Court postponed by the Amin from 20th to 24th April 1931. This the Amin had no right to do. There is nothing on the record to show whether the intending purchasers who may have been present on 20th April were informed that the sale would take place on 24th April 1931. It follows therefore that there is much to be said in favour of the allegation of the judgment-debtor, that because of the adjournment of the sale in an irregular manner by the Amin, the property did not fetch its proper value at the sale. That the property was sold at, a grossly inadequate price is patent by the fact that the property was valued at Rs. 25,400 by the Collector. Thus we come to the conclusion that there was fraud in publishing the sale, there was irregularity in the conduct of the sale and as a consequence of the fraud and irregularity, the property was sold at a very inadequate price with consequent loss to the judgment-debtor. Apart from this the sale was entirely without jurisdiction and therefore ought to have been set aside. It is to be noted that as in this case the decree-holder himself was the auction-purchaser, it was open to the judgment-debtor to assail the validity of the sale on grounds apart from those specified in Order 21, Rule 90, Civil P.C : vide Superior Bank Ltd. v. Budh Singh A.I.R. 1924 All 698. The result is that we also allow Execution First Appeal No. 338 of 1931 and set aside the sale dated 24th April 1931. The appellant is entitled to his costs both in this Court and in the Court below.

8. The necessary consequence of out decision in the two execution first Appeals is that the property covered by the final decree for sale is to be treated as ancestral property and the execution of the decree has to be transferred to the Collector. We accordingly direct that the Court below should transfer the execution of the decree to the Collector.


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