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Bibhuti Bhusan Dey Vs. Bankim Chandra Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 129 of 1968
Judge
Reported inAIR1971Cal203
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 66(4) and 90
AppellantBibhuti Bhusan Dey
RespondentBankim Chandra Ghosh and ors.
Appellant AdvocateMonomohan Mukherjee, Adv.
Respondent AdvocateRamendra Nath Dutta, ;Madan Mohan Goswami, Advs. for (No. 1) and ;Rabindra Nath Choudhuri, Adv. (for No. 2)
Cases ReferredBudhan Singh v. Nabi Bux. We
Excerpt:
- .....90 of the code of civil procedure that the disputed property was not properly described in the sale proclamation which was fraudulently suppressed and, on account of such suppression, the property has been sold at an inadequately low price resulting in substantial injuries to the petitioner. the opposite party no. 1 is the auction-purchaser and the opposite party no. 2 is the decree-holder. both of them opposed this application.3. the executing court dismissed the application on the view that none of the grounds taken were proved. on a finding that at the time of the issue of the sale proclamation both parties gave their own valuation as to the property sold and according to the proviso to cl. (e), sub-rule (2) of rule 66 of order 21 of the code of civil procedure the sale.....
Judgment:

A.K. Sinha, J.

1. This Rule was obtained by the judgment-debtor petitioner against an appellate order refusing to set aside an auction sale under Order 21, Rule 90 of the Code of Civil Procedure, --the judgment being one of affirmance.

2. The petitioner is one of the judgment-debtors and it is alleged in his petition under Order 21, Rule 90 of the Code of Civil Procedure that the disputed property was not properly described in the sale proclamation which was fraudulently suppressed and, on account of such suppression, the property has been sold at an inadequately low price resulting in substantial injuries to the petitioner. The opposite party No. 1 is the auction-purchaser and the opposite party No. 2 is the decree-holder. Both of them opposed this application.

3. The executing court dismissed the application on the view that none of the grounds taken were proved. On a finding that at the time of the issue of the sale proclamation both parties gave their own valuation as to the property sold and according to the proviso to cl. (e), sub-rule (2) of Rule 66 of Order 21 of the Code of Civil Procedure the sale proclamation was published with both the valuations namely, Rs. 5000/- by the decree-holder and Rs. 25000/- by the judgment-debtor and, accordingly, the sale proclamation was duly served and not suppressed. It was further found that the property was sufficiently described with all the necessary details and the omission to mention in the sale proclamation the number of rooms was not at all material nor it could be held that the said defect misled the prospective buyers in any way and the property was not sold at an inadequately low price.

4. On appeal the appellate court agreed with the findings of the executing court on the view that the petitioner failed to prove the actual market value of the property on proper and sufficient evidence and, in any event, the price of Rs. 8000/- at which the property was sold was not 'a grossly inadequate price.' snd, therefore, did not constitute any material irregularity or fraud in publishing or conducting the sale. The correctness of this decision has been challenged before us in the instant revision case.

5. The main grievance, as pressed by Mr. Monomohan Mukherjee, learned advocate for the judgment-debtor-appel-lant-petitioner is that the value of the disputed property at the material time would be Rs. 25,000/- and there is nodoubt that Rs. 8,000/- at which the property was sold was 'shockingly a low price' and this by itself would constitute a fraud on the part of the decree-holder in publishing or conducting the sale. In support of this contention, reliance was placed on several decisions of this Court namely, : AIR1971Cal87 Sisir Kumar Mukheriee v. Kanyalal Jhewar; (1967) 71 Cal WN 649, Prabodh Chandra Mukherjee v. Pashupati Mukher-jee; (1964) 67 Cal WN 1072. Bipin Behart Baidya v. Surya Kanta Jana and : AIR1956Cal59 , Manmatha Nath Chakravorty v. Sachindra Kumar Chakravorty. All these decisions, it will appear, are mainly dependent upon the pronouncement of the Judicial Committee, reported in ILR 1945 Mad 601 = (AIR 1945 PC 67) Marudanayagam Pillai v. Manickavasakam Chettiar and also the case reported in (1875) 25 Ind App 146 (PC), Sadatmand Khan v. Phul Kuar. The principle indicated in these decisions is unopposed. But all these decisions are distinguishable from the instant case before us on facts. We are not impressed with the arguments of Mr. Mukherjee that the sale price of Rs. 8,000/- as against Rs. 25000/- given by the judgment-debtor In the sale proclamation is such an inadequate price as to constitute fraud on the part of the decree-holder in collusion with the auction-purchaser or a fraud committed on the Court. Both the courts have come to a concurrent finding of fact, we think rightly, that the price of Rs. 8,000/-in respect of the disputed properties was not an inadequate price--'not to speak of a grossly inadequate price. Moreover, we fully agree, as has been held by the appellate court, that mere Inadequacy ot price is not enough. Petitioner has to establish causal connection between Inadequacy of price and material irregularity or fraud by direct or substantial evidence. In this case, the decree-holder is an institution like the Life Insurance Corporation of India and the auction-purchaser is a private individual residing at Baranagar. There is no and there could not be any suggestion of collusion between them. . . .' We fully endorse the conclusion of the appellate court that the petitioner has failed to prove material irregularity or fraud In publishing the sale proclamation and to establish that the disputed property was sold at a grossly Inadequate price leading him to substantial injury.

6. The other contention raised by Mr. Mukherjee is that, in any event, it was clearly obligatory on the executing court to determine the valuation of the property at least on consideration of certain counterfoil of rent receipts produced by the petitioner under Sub-rule (4), Rule 66 of Order 21 of the Code. In our opinion, this contention cannot be sup-ported in law; for In view of the Calcutta Amendment which was already in force at the material time 'it shall not be necessary for the court itself to give its own estimate of the value of the property but the proclamation shall include the estimate, it any, given by either or both of the parties.' That this is the position in law is supported by a decision of Division Bench of this Court as relied on by the learned advocates. Mr. Dutt and Mr. Choudhury on behalf of the Opposite Parties (Gayaprasad v. Seth Dhanrupmal Bhandari, : AIR1954Cal492 ). So the argument of Mr. Mukheriee in support of this contention has really no substance.

7. Lastly, it has been contended by Mr. Mukherjee that this Court has inherent power to interfere in matters relating to question as to whether there was material irregularity or fraud in publishing or conducting the sale and he relies on ILR (1968) 1 Cal 43, Pankaj Kumar Pakhira v. Nanibala Pakhira. Here again, the facts are entirely distinguishable. The question arose in this case as to whether, in a case of fraud, irrespective of the question of limitation the Court could interfere by setting aside an auction sale held in execution of a decree. It was held that court's power in this direction was unfettered. We do not think that this case has any bearing to the questions Involved in the facts and circumstances of the present case. Mr. Mukherjee also has argued that if we disagree with the decision of the Division Bench, we should refer the matter to a large Bench and he has relied on a decision of the Supreme Court in : [1970]2SCR10 . Budhan Singh v. Nabi Bux. We do not think it necessary to consider this point for on facts we find that there is no case for the petitioner in the present application for revision.

8. Accordingly, this Rule is discharged but we make no order as to costs.

Let the records go down as quickly as possible.

B. Banerji, J.

9. I agree.


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