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(Syed) Ibne Ali Vs. (Sahu) Dharam Kirti Saran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All182; 153Ind.Cas.410
Appellant(Syed) Ibne Ali
Respondent(Sahu) Dharam Kirti Saran
Cases ReferredChuttan Lal v. Muhammad Ikram Khan
Excerpt:
- - further it is not shown that the villages are not adjacent, we consider that the appellant has failed to prove that there was any irregularity on this account......different villages and two different parganas were sold in one lot contrary to the terms of the sale proclamation. it is a fact that the sale proclamation set out that these nine items of property should be sold separately. the lower court states that the sale officer's note of the date of sale, 29th march 1932, is that in the midst of the public auction gathering the property was on that date first put for sale in separate lots and subsequently all together. learned counsel for appellant argued that there was no such note on the record and he referred to the documents for each sale. we have however ascertained that there is such a note in such terms. two witnesses were produced for the judgment-debtor who stated that they were prevented from purchasing particular shares, but they.....
Judgment:

1. This is a first appeal from order by a judgment-debtor. The appellant made objections against a sale of his property in execution of a civil Court decree. The sale was conducted at the Collector's office by the revenue Court amin. The first objection taken is that the nine items of property situated in three different villages and two different parganas were sold in one lot contrary to the terms of the sale proclamation. It is a fact that the sale proclamation set out that these nine items of property should be sold separately. The lower Court states that the sale officer's note of the date of sale, 29th March 1932, is that in the midst of the public auction gathering the property was on that date first put for sale in separate lots and subsequently all together. Learned Counsel for appellant argued that there was no such note on the record and he referred to the documents for each sale. We have however ascertained that there is such a note in such terms. Two witnesses were produced for the judgment-debtor who stated that they were prevented from purchasing particular shares, but they admit that they did not ask the sale officer to sell the shares separately. Further it is not shown that the villages are not adjacent, we consider that the appellant has failed to prove that there was any irregularity on this account.

2. The next argument taken is that in the order of adjournment no hour is prescribed at which the sale should take place. The sale was fixed in the sale proclamation for 21st March 1932. On that date the sale officer noted that no time was left as time had been taken up with the sale of other properties and therefore the sale of this property was adjourned to 29th March 1932. He did not fix an hour for the adjourned sale. Learned Counsel relies on the provision in Order 21, Rule 69(1) which states:

The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may, in his discretion, adjourn the sale, recording his reasons for such adjournment.

3. Learned Counsel fails to note that, this sub-rule, only provides that where the Court adjourns a sale the Court should specify the day and hour, but the rule does not provide that the officer making an adjournment should also specify the hour. Presumably the reason is that for the officer this Court has already fixed the hour in General Rules (Civil), Vol. 2, Appendices p. 3, Appendix 1, 'Sale of land other than ancestral in execution of civil Court decrees' Rule 2, which states:

The sale shall commence at noon at all reasons in all Districts.

4. It has also been held in Chuttan Lal v. Muhammad Ikram Khan 1933 All. 546 that this omission to specify an hour is not a material irregularity. Further we may note that learned Counsel did not take this objection before the lower Court.

5. The last objection that has been argued in ground No. 1, that the sale was not properly proclaimed. The ground does not set forth in what way the sale was not properly proclaimed, but learned Counsel states that he means that the sale proclamation was not affixed in the different villages and the drum was not beaten. These objections are somewhat vaguely put in the application of objection to the lower Court which states that sale proclamation was not posted at the locality and beat of drum was not properly made. No specification is made as to what is meant by 'the locality' and it is not stated that the drum was not beaten, merely that it was not properly beaten. However learned counsel has now made clear what his client intends. He relies on four witnesses who state that they did not see the proclamation in the villages and that they did not hear the beat of drum. Negative evidence of this sort proves very little because the witnesses may have been unobservant or may not have been in a position to make observations. There is evidence to the contrary of three witnesses for the decree-holder. No witness has been produced for the judgment-debtor to state that he is willing to purchase any item of the property and is willing to make a deposit and has made an application of that nature to the execution Court. This is the acid test by which the genuineness of such objections is usually ascertained. We consider that no case has been made out for the appellant and that the objections are merely of a frivolous nature. The property was sold for Rs. 38,000, which is a considerable sum, and no evidence has been brought to our notice to show that this sum was insufficient under the present circumstances of agricultural sales. Under these circumstances we dismiss this first appeal from order with costs.


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