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Sisir Kumar Mukherjee and ors. Vs. Kanyalal Jhewar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. Nos. 255 and 264 of 1964 with Civil Revn Case Nos. 1496 and 1782 of 1964
Judge
Reported inAIR1971Cal87,74CWN469
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90; ;Limitation Act - Section 18
AppellantSisir Kumar Mukherjee and ors.
RespondentKanyalal Jhewar and ors.
Appellant AdvocateApurbadhan Mukherjee, ;Harinarayan Mukherjee, Advs. in F.M.A. 255 of 1964, ;Sudhir Kumar Bose, Adv. in F.M.A. No. 264 of 1964, ;Sudhir Kumar Bose, Adv. in C.R. No. 1782 of 1964, ;Apurbadhan Mukherjee
Respondent AdvocateB.K. Ghosh and ;Biswajit Ghosh, Advs., ;B.K. Ghosh, Adv. (In C.R. No. 1782 of 1964) and ;Biswajit Ghosh, Adv. (In C.R. No. 1496 of 1964), ;Apurbadhan Mukherjee and ;Harinarayan Mukherjee, Advs. for Re
DispositionAppeals dismissed
Cases ReferredKamal Kumar Nag Choudhury v. Parbati Charan Kundu
Excerpt:
- .....for setting aside an execution sale. first miscellaneous appeal no. 255 of 1964 is by the decree-holders and the other first miscellaneous appeal, namely. no. 264 of 1964, is by the auction-purchaser.2. the property in question, namely, premises nos. 1 and 2 (now no. 1) nityadhon mukheriee road, howrah, belonged to the sils (sic) in superior interest, under whom respondent no. 1 and/ or his predecessor was the lessee under a lease, dated october 6, 1920, for a period of fifty years, expiring in august 16, 1970. the appellants were sub-lessees in respect of the said property. in or about the year 1957, the appellants instituted a suit (title suit no. 104 of 1957 of the first court of the subordinate judge, howrah) for specific performance of a contract of renewal of the.....
Judgment:

P.N. Mookerjee, J.

1. The above two appeals arise out of the same proceeding under Order 21, Rule 90 of the Code of Civil Procedure for setting aside an execution sale. First Miscellaneous Appeal No. 255 of 1964 is by the decree-holders and the other First Miscellaneous Appeal, namely. No. 264 of 1964, is by the auction-purchaser.

2. The property in question, namely, Premises Nos. 1 and 2 (now No. 1) Nityadhon Mukheriee Road, Howrah, belonged to the Sils (sic) in superior interest, under whom respondent No. 1 and/ or his predecessor was the lessee under a lease, dated October 6, 1920, for a period of fifty years, expiring in August 16, 1970. The appellants were sub-lessees in respect of the said property. In or about the year 1957, the appellants instituted a suit (Title Suit No. 104 of 1957 of the First Court of the Subordinate Judge, Howrah) for specific performance of a contract of renewal of the sub-lease. That suit was decreed on July 6, 1960. with costs. The said decree, including the decree for costs, was put into execution in Title Execution Case No. 21 of 1960 on August 20, 1960. In the said execution, there was a two-fold prayer : first, for execution and registration of a document of lease or sub-lease in terms of the above decree and, secondly, for realisation of the decretal costs of Rs. 1,731.69 P. by attachment and sale of the judgment-debtor-lessor's interest. The judgment-debtor's objection under Section 47 of the Code of Civil Procedure, filed on November 4, 1960 (Misc. Case No. 51 of 1961), was dismissed on January 25, 1961, and, thereafter, the lease (sub-lease) was executed and registered between March 3, 1961 and April 17, 1961. This was followed by the decree-holders' prayer for realisation of the above decretal costs by attachment and sale of the lessor's interest, as stated hereinbefore. In this proceeding, the sale was actually held on September 11, 1961, and Sailendra Nath Ganguly (Respondent No. 2 in F. M. A. 255 of 1964 and Appellant in F. M. A. 264 of 1964) became the auction-purchaser for a sum of Rs. 9,999/-. Delivery of possession was purported to have been taken by the auction-purchaser on December 1, 1961, after obtaining the requisite sale certificate. On December 13, 1961, the judgment-debtor Kanyalal Jhawar applied for setting aside the said sale under Order 21, Rule 90 of the Code of Civil Procedure in Misc. Case No. 65 of 1961, (sic) and that the sale processes and relative execution processes had all been suppressed. This application was eventually allowed by the learned trial Judge by his order, dated February 21, 1964, and, against the said order, the present two appeals have been filed by the decree-holders and the auction-purchaser respectively.

3. The judgment-debtor's prayer for setting aside the sale was opposed principally upon three grounds. First, that there was no material irregularity or fraud in the sale proceedings; that the property was not sold at an under value and. thirdly, that the application for setting aside the sale was time-barred. All the above objections, however, were overruled by the learned Subordinate Judge and the sale was set aside, as stated above.

4. Before us, Mr. Mukherjee, appearing for the decree-holders appellants in F. M. A. 255 of 1964, and Mr. Bose, appearing for the auction-purchaser appellant in F. M. A. 264 of 1964, have assailed the above decision of the learned Subordinate Judge upon the grounds inter alia that his findings to the effect that the auction-purchaser was really a benamidar for the decree-holders; that the sale proceedings were vitiated by fraud, that the property was sold at a gross under valuation, shockingly low, that the relative processes were all fraudulently suppressed and that the judgment-debtor suffered substantial injury as a result of material irregularity and fraud, would not be supported by the materials on record.

5. In our view, however, whatever might be said with regard to some of the findings of the learned Subordinate Judge, his ultimate conclusion that the sale in question was liable to be set aside has to be affirmed on the following short grounds.

It is clear from the materials before us that the interest, which was purported to have been sold in the execution sale in question, entitled its holder to a net profit of Rs. 600/- per month on the footing that he was entitled to realise from the sub-lease, the above decree-holders themselves, a sum of Rs. 1600/- per month and was liable to pay to his head lessor, on account of the disputed property, a rent in the neighbourhood of Rs. 1,000/- per month.

That, further, at or about the time of the disputed sale, the relevant lease had a life of about nine years, the sale having taken place in September, 1961, and the period of the lease was to expire in 1970 and, upon the above footing, on the minimum computation, the value of the interest, to be sold, could not be less than Rs. 60,000/-. In the execution petition, the decree-holders put the valuation at Rs. 6,000/- and, in the sale proclamation, it was further reduced to Rs. 1,500/-, the decree-holders' explanation being that the property was heavily in arrears at the time of the settlement of the said sale proclamation and further, that the judgment-debtor's name had not been mutated in the landlord's sherista.

6. We agree with the learned Subordinate Judge that none of the above explanations would be sufficient for reducing the value of the disputed property to the abnormally low figure of Rs. 1,500/- apart from the fact that, so far as the property being heavily in arrears, the records would not sustain the said allegations. Even on the materials produced on the decree-holder's side, the arrear at the relevant time would not exceed one or two months' and, if we go by the counterfoil, (Ext. J), on which reliance was placed for showing that rent for this particular property had been paid only upto the month of May, 1961, and a part of June. 1961, the only arrears, which would be outstanding at the relevant date, would be for the month of June, 1961, and the decree-holders' allegation that that entitled the landlord to forfeit the lease under the terms thereof, would not also be supported, as, on the said counterfoil, the requisite period of thirty days had not expired.

7. It s true that, in the oral evidence, something was said that this rent was paid sometime in October. 1961; but, in view of the fact that that evidence would be contradicted by the said counterfoil itself, it will be hard to accept the said statement or the relative explanation, given on the decree-holders' side.

8. So far as non-mutation of the judgment-debtor's name in the landlord's sherista, we do not consider it to be of much importance as there is no question that the interest was transferable under the law and, therefore, the mere fact that the holder's name had not been mutated in the landlord's sherista would not jeopardise his interest or reduce its value.

9. We have, therefore, before us, the picture of a property, worth at least Rs. 60,000/-, put in the sale proclamation as having a value of Rs. 1,500/- and, upon such valuation, the sale was held at a price of Rs. 9,999/- and odd. It would, in our view, be a case, where the decree-holders would be guilty of deliberately putting a shockingly low valuation for the disputed property in the proclamation for sale and on the authority of the Judicial Committee in the case of Marudanayagam Pillai v. Manickavasakam Chettiar, 49 Cal WN 292 = (AIR 1945 PC 67), as explained in the two decisions of this Court, in Prabodh Chandra Mukheriee v. Pasupati Mukheriee, (1967) 71 Cal WN 649 and Pankai Kumar Pakhira v. Nani Bala Pakhira, ILR (1968) 1 Cal 43, this would amount to fraud on Court and would vitiate the sale apart from the question of any other material irregularity in the publishing or conducting of the sale.

10. We may also point out that, in the instant case, whatever might be said with regard to service of the other processes, there is hardly any satisfactory evidence of service of the notice under Order 21. Rule 66, C. P. C. on the judgment-debtor. The only evidence on this point is of the process-server, who confines himself to the return, submitted by him, and frankly confesses that he has no independent recollection in the matter. So far as the said return is concerned, it purports to have been served in the presence of an identifier and also unnamed moka bila witnesses and none of them has been examined in support of such service. In the circumstances, apart from the other reasons, given by the learned Subordinate Judge, for not accepting this service, we are inclined to hold that service of this notice under Order 21, Rule 66 of the Code of Civil Procedure on the judgment-debtor has not been proved.

11. It is clear, therefore, that this notice cannot fix the judgment-debtor with knowledge of the sale proceedings. As to the service of the other processes, namely, the sale proclamation and the attachment processes, even if that was made, having regard to the admitted fact that the judgment-debtor was residing far away from the disputed property and, upon his evidence, which has been accepted by the court below, and which we have no reason to reject in the facts and circumstances of this case, the judgment-debtor had no knowledge of either the attachment or the service of the sale proclamation. It is clear, therefore, that knowledge on the part of the judgment-debtor as to the sale proceedings prior to the date, alleged by him, has not been established and on the evidence before us, we agree with the learned Subordinate Judge that his case that he came to know of the sale only on December 9, 1961, may well be accepted.

12. In this view, we would hold that the sale proceedings in question were vitiated by fraud on Court on the part of the decree-holders and that the judgment-debtor's application for setting aside the sale was within time and would not be barred by limitation (Vide the cases, already cited).

13. We do not deem it necessary to go into the correctness or otherwise of any of the other findings of the learned Subordinate Judge, as, in our opinion, the same will not be necessary for supporting the conclusion, in view of our above findings, that the instant sale should be set aside.

14. We may add also that the instant case being a case of fraud on Court, it will vitiate the proceedings apart from or irrespective of any question under Section 18 of the Limitation Act and that, even for purposes of the said section, fraud on the part of the decree-holders would be enough and it will not be necessary for attracting' the same to establish fraud on the part of the auction-purchaser, (Vide, in this connection, Kamal Kumar Nag Choudhury v. Parbati Charan Kundu, : AIR1961Cal81 ).

15. In the premises, the appeals would fail and they would be dismissed.

16. There would, however, be no order for costs in either of them.

Civil Revision Cases Nos. 1496 & 1782 of 1964.

17. As these Rules are for interim orders, pending the disposal of the above appeals, our above decision, disposing of the said appeals, puts an end to these Rules too, and they must be deemed to have spent themselves as a result of the above disposal of the connected appeals and must be held to be disposed of on that footing. We order accordingly.

18. There will be no order for costs either in any of these Rules.

Amiya Kumar Mookerji, J.

19. I agree.


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