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Mohunt Megh Lall Pooree Vs. Shib Pershad Madi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal34
AppellantMohunt Megh Lall Pooree
RespondentShib Pershad Madi and ors.
Cases ReferredShah Koondun Lall v. Noor Ali
Excerpt:
execution - irregularities in proclamation of sale--evidence of such irregularities--nazir's report--civil procedure code (act x of 1877), sections 274, 287, 289, 290, 291, and 295--sale to satisfy judgment--creditor who has not attached. - .....fixed for sale, and therefore not in sufficient time; that the property was not described in the sale-proclamation; that the deputy commissioner was not-competent to adjourn the sale for three days in consequence of his sickness; that the mortgagee in possession should not have been allowed to purchase; and that, in consequence of all these irregularities, substantial injury has been caused, an inadequate price, much below the proper value of the properties, being obtained.5. it is in the first place clear, that the deputy commissioner was wrong both in accepting as evidence the reports of the nazir and peon regarding the sale-proclamation having been regularly made, and in refusing to give the judgment-debtor an opportunity to adduce evidence to the contrary. the case quoted by.....
Judgment:

Prinsep, J.

1. In execution of two decrees held by Norchunder Dutt and Mohanund Dutt, the right, title, and interest of the judgment-debtor, appellant, in three mouzas, Kharn, Kharkhan, and Palmo, were attached and advertised for sale. Meantime a third decree-holder, Sheopershad, applied to execute his decree, in order that, under Section 295 of the Civil Procedure Code, he might participate in the sale-proceeds.

2. The two first mentioned properties were then sold, and realized a sum more than sufficient to liquidate the decrees of the judgment-creditors who originally put the Court in motion. The remaining property was next sold, and all the decrees have been satisfied.

3. Various objections were then taken to the sale, which were disallowed by the Deputy Commissioner of Hazareebagh, and the judgment-debtor has now appealed against that order. It is first of all contended by Mr. W. C. Bonnerjee, for the judgment-debtor, appellant, that, as the decrees under execution were satisfied by the two properties first sold, no further sale should have been held. What would be the effect of an application made by those whose decrees were under execution to abstain from further proceedings on another decree-holder who had merely applied to execute his decree so as to obtain the benefit of Section 295, that is, to participate in the assets realized in execution of the other decrees, we are not called upon to decide, because it does not appear that in the case now before us the two decree-holders, who are actually executing their decrees, made any such application. That the amount realized by the sale of the first two properties was sufficient to satisfy their decrees is immaterial, since by the interposition of another decree-holder, under Section 295, that sum would not be payable to them alone. It would be subject also to the claim of this stranger, who, under Section 295, would be entitled to a rateable distribution of the assets. It could not then be said that by the amount realized from the first sale the decrees under execution were satisfied. We think, therefore, that the lower Court rightly proceeded to sell the third property, Palmo.

4. It further objected that no proclamation of sale was made on the spot as required by s. 274; that the Deputy Commissioner should have given the judgment-debtor an opportunity of proving this; that he improperly received in evidence and acted on the reports of the Nazir and peon; that even if the proclamation was made on the spot, it admittedly was not made until the 10th May, five days before the day fixed for sale, and therefore not in sufficient time; that the property was not described in the sale-proclamation; that the Deputy Commissioner was not-competent to adjourn the sale for three days in consequence of his sickness; that the mortgagee in possession should not have been allowed to purchase; and that, in consequence of all these irregularities, substantial injury has been caused, an inadequate price, much below the proper value of the properties, being obtained.

5. It is in the first place clear, that the Deputy Commissioner was wrong both in accepting as evidence the reports of the Nazir and peon regarding the sale-proclamation having been regularly made, and in refusing to give the judgment-debtor an opportunity to adduce evidence to the contrary. The case quoted by him---Alimoody Chowdhry v. Chunder Nath Sen (24 W. R., 227), is not in point. On the other hand it has been repeatedly held, that such reports are not legal evidence: Okhoy Chunder Dhur v. Ershine & Co. [3 W. R. (Mis), 11] Sreenath Thakoor v. Watson & Co. [4 W. R. (Mis.), 4], Shah Koondun Lall v. Noor Ali (10 W. R., 3).

6. But even if the sale-proclamation was made, it admittedly was not made until the 10th May, five days before the day fixed for sale. We are informed by the appellant's counsel, and this is not disputed by the respondents' pleader, that the place on which it is said to have been made is sixty miles from the Court holding the sale. It is pressed on us by the learned Counsel for the appellant, that although the law, Section 290, declares that it is necessary only that there should be an interval of thirty days between the date of fixing up of the sale-proclamation on the Court-house and the day of sale, that 'fixing up' cannot be done until proclamation has been duly made and reported to the Court. The terms of the law, Section 290, certainly leaves this in doubt, and it is difficult to understand the object of enacting a specific term, thirty days from any proceeding not the final proceeding, unless the other necessary proceeding is considered merely formal and of no material effect on the sale. It appears to me, however, that the making of a sale-proclamation on the spot is a most material proceeding, for it must be presumed that, ordinarily, purchasers will be those living in the neighbourhood, best informed of the real value of the property, and most likely to purchase from the situation of the property with respect to their own residence or properties held by them. Of course, in some cases it may be that the value of the property to be sold may put it beyond the power of neighbours to compete at the auction, and that the bidders can only be capitalists residing near the Court-house; but such would be exceptional cases, and in seeking the object of the Legislature, we must look to the vast majority of the cases which occur. It appears to me, too, that it could not have been intended that a copy of the sale-proclamation should be 'fixed up in the Court-house' until it was actually reported to the Court that the proclamation itself had been made under Section 274. I further think that the order in which these proceedings should be taken is indicated by the order in which they are expressed in Section 290. If this view be not accepted, the Court in each case would have to determine whether a sale-proclamation had been made in a reasonable time before the date of sale, so as to give a fair opportunity to persons likely to purchase, who live on or near the property to be sold, although a term is specified with regard to the fixing up of the copy of the sale-proclamation in the Court-house. Such a rule would not only be inconvenient, but would be contrary to what I conceive to be the intention of the Legislature, viz., to fix some term which must expire between the last formality to bring a property to sale, and the sale itself. I, therefore, have no hesitation in holding that if the proclamation was made on the spot only five days before the date fixed for sale, there has been 'a material irregularity in publishing it.' It would, however, be incumbent on the person seeking to set aside the sale, the judgment-debtor, to show that 'he has sustained material injury by reason of such irregularity.'

7. As regards the objection taken regarding the adjournment of the sale for three days, in consequence of the illness of the Deputy Commissioner, we consider that that officer exercised a wise discretion given to him by law (Section 291*[Section 291:---The officer conducting any sale under this chapter may in his discretion adjourn the sale, recording his reasons for such adjournment: Provided that when the sale is made in or within the precincts of the Court-house no such adjournment shall be made without the such sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to such officer or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court that ordered the sale.]) in refusing to hold the sale of properties of such large value except under his personal superintendence, which, in his absence from illness, would be impossible.

8. The next objection is, that the properties were imperfectly described in the sale-proclamation. The law requires that a proclamation of sale shall specify, as fairly and accurately as possible, any incumbrance to which the property is liable, and also every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property. I observe that only the right, title, and interest of the mortgagor (that is, the equity of redemption) were sold, and that the sale-proclamation states that the property is subject to a mortgage. It appears that the mortgagee is in possession of these properties, and that he is the purchaser at the auction-sale. Now it is clear that, to enable a bidder to form any definite idea of the value of these properties, the amount of the outstanding debt should have been specified. Unless that was declared, the mortgagee would be the only person who was in possession of this information; and if that information were withheld, he would be able to bid at an advantage with regard to other bidders. Such an omission, where the mortgagee in possession is himself the purchaser, affords strong prima facie grounds for believing that an inadequate price was obtained.

9. We, therefore, remand this case to the Deputy Commissioner , and direct that he do give the parties an opportunity to adduce such evidence as they may desire on the points indicated, and decide the case accordingly.

Cunningham, J.

10. This is an appeal from an order refusing to set aside a judgment sale of immoveable property on the ground of material irregularities in publishing and conducting it, whereby the appellant has sustained substantial injury.

11. One of the alleged irregularities was, that no proclamation was made on the spot in conformity with Sections 289 and 274, Civil Procedure Code. No opportunity was given to the execution-debtor of proving this, the Court satisfying itself with the reports of the Nazir and peon as sufficient proof of the proclamation. This was irregular. In the next place, it is admitted that the proclamation on the spot, if made at all, was not made till five days before the sale. With regard to this the intention of Sections 289* and 290 must, in my opinion be taken to be that the proclamation should be made on the property in question before or at the same time that the copy of it is fixed up in the Courthouse, and that the reason of the omission in Section 290 of reference to the proclamation on the spot as one of the events which must occur at a specified time before the sale, is, that the Act regards the proclamation on the spot and the fixing of it up in the Court as simultaneous proceedings.

12. In the present instance, as the distance of the property from the Court was sixty miles, the period allowed was clearly inadequate, and there was a material irregularity which, if it can be shown that there has resulted material injury (of which gross inadequacy of price would be an indication), would entitle the judgment-debtor to have the sale set aside.

13. Another of the alleged irregularities is the inadequate description of the properties in the proclamation of the sale. Section 287 of the Civil Procedure Code requires that any incumbrance to which the property is liable should be stated, as well as every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property. In this case the proclamation stated the fact of an incumbrance, but omitted, to specify the amount of the mortgage debt still outstanding. This would leave the incumbrancer in a more favourable position than any one else to judge of the value of the equity of redemption, and as he was the purchaser, it is probable enough that this irregularity did occasion substantial injury to the judgment-debtor.

14. The order of the lower Court must accordingly be set aside, and the case remanded to the Deputy Commissioner to rehear the application with reference to the observations made above.

Costs will abide the result.


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