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Hari Sadhan Roy Vs. Shib Gopal Mitra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal597,65Ind.Cas.746
AppellantHari Sadhan Roy
RespondentShib Gopal Mitra
Cases ReferredRang Lal Singh v. Ravaneshwar Pershad Singh
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 69 - execution sale taking place on date to which it was not adjourned, effect of--material irregularity--substantial injury. - .....decree on the 4th november 1919, when the properties of the judgment-debtor were purchased by the decree-holder for rs. 415. the decree-holder was defendant in the suit instituted by the judgment-debtor which was dismissed with costs by the court of first instance as also by this court on appeal. the decree of this court was made on the 3rd march 1919. on the 27th may 1919 the defendant applied for execution of the decree for costs. on the 8th july 1919 the properties of the judgment-debtor were attached. on the 25th august 1919 the court directed a sale proclamation to be issued, fixing the 27th october 1919 for the sale. on that very date, an objection to the execution was lodged by the judgment-debtor. on the 27th october 1919 two orders were recorded. the first was in the following.....
Judgment:

1. We are invited in this Rule to set aside a sale held in execution of a money decree on the 4th November 1919, when the properties of the judgment-debtor were purchased by the decree-holder for Rs. 415. The decree-holder was defendant in the suit instituted by the judgment-debtor which was dismissed with costs by the Court of first instance as also by this Court on appeal. The decree of this Court was made on the 3rd March 1919. On the 27th May 1919 the defendant applied for execution of the decree for costs. On the 8th July 1919 the properties of the judgment-debtor were attached. On the 25th August 1919 the Court directed a sale proclamation to be issued, fixing the 27th October 1919 for the sale. On that very date, an objection to the execution was lodged by the judgment-debtor. On the 27th October 1919 two orders were recorded. The first was in the following terms: 'Put it up on the 1st October (1st November?) 1919 which is the day for miscellaneous cases.' The second order was in the following term: 'The decree-holder has applied for permission to bid at the sale. Let it be filed with the record and put it up on that date for orders.' On the 1st November we find the following order recorded on the order-sheet: 'Opposite party is ready. Petitioner does not appear to day The Presiding: Officer on leave; case be put up on the 4th November for order,' On the 4th November the following order was made: 'Petitioner not present and so objection is dismissed for default Put it up for sale. Permission is given to the decree-holder to bid at sale as prayed for by him,' There were no bidders present and the properties were knocked down to the decree-holder for Rs. 415. There were three properties sold and the bids offered by the decree-holder were equal to the sums mentioned in the Rule proclamation as the value of the different lots.

2. There has been some controversy as to the meaning of the order recorded on the 27th October. We are of opinion that what was intended was that the properties should be put up for sale on the 1st November, which was the date fixed for miscellaneous cases. This may be treated as an order for adjournment of sale under Order XXI, Rule 69 of the Code of Civil Procedures. The order of the 1st November, however, is not capable of such an interpretation. It was clearly an order in the miscellaneous case and apparently no order for adjournment of the sale was made in the execution case. Consequently, the true position is that, although the sale was advertised to take place on the 27th October and was adjourned till the 1st November, the sale did not take place on the adjourned day but was held on the 4th November, to which date the sale had never been adjourned. This was clearly a material irregularity, as is indicated by the decisions in Jamini Mohan Nandy v. Chandra Kumar Roy 6 C.W.N. 44, Bhikari Misra v. Rani Surja Moni 6 C.W.N. 48 and Paran Singh v. Janardan Singh 13 Ind. Cas. 337 : 4 C.L.J. 541 at p. 550. The true nature of a departure of this character from the provisions of the Code was considered by this Court in Basharutullah v. Uma Churn Dutt 16 C. 794 : 8 Ind. Dec. (N. s ) 527, which was recently approved by the Madras High Court in Jayarama Aiyar v. Vridhagiri Aiyar 59 Ind. Cas. 167 : 44 M. 35 : 39 M.L.J. 18(sic); 12 L.W. 182 : (1930) M.W.N. 490. According to the view taken in the two cases just mentioned, a sale held under such circumstances could not be deemed a sale under the Code at all. Whether such a view can be maintained in the face of the decisions of the Judicial Committee in Balkrishna v. Musuma Bibi 5 A. 142 at p. 157: 9 I.A. 182 : 13 C.L.R. 232 : 4 Sar. P.C.J. 398 : 3 Ind. Dec. (N.S.) 15 (P. C), Tasadduk Rasul Khan v. Ahmad Husain 21 C. 66 : 20 I.A. 176 : 17 Ind. Jur; 534 : 6 Sar. P.C.J. 324; Rafique and Jackson's P.C. No. 131 : 10 Ind. Dec (N.S.) 676 and Gobind Lal Roy v. Ramjanam Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. Jur. 536 : 6 Sar. P.C.J. 356 : 10 Ind. Dec (N.S.) 679 may be a matter for argument. But for our present purpose, it is not necessary to adopt that extreme view, because we are clearly of opinion that there was a material irregularity in the conduct of the sale. Our attention hat, however, been drawn to the case of Rang Lal Singh v. Ravaneshwar Pershad Singh 12 Ind. Cas. 174: 14 C.L.J. 334 : 39 C. 26 : (1911) 2 M.W.N. 108 : 10 M.L.T. 161 : 13 Bom. L.R. 823 : 8 A.L.J. 1173 : 16 C.W.N. I; 38 I.A. 200 (P.C.) as an authority in support of the contrary view. In that case, the sale was directed to be held in the course of the monthly sales to commence on the 13th July, On that date the monthly sales did not commence, as the Presiding Officer was absent from the station from the 13th to the 16th July. The monthly sales began on the 17th July and, after an application for postponement had been refused, the property was sold on the 20th July, that is, within seven days from the 13th July, and consequently from the 17th July as well. In these circumstances, it was held that the sale was not an irregular sale. In the case before us, the sale was fixed for the 27th October 1919. It was not held till the 4th November 1919 though no order had been made for adjournment to that date. In fact, an adjournment to that date would have been an adjournment for a longer period than the seven days mentioned in Rule 69 of Order XXI of the Code of Civil Procedure. On these facts, we are of opinion that the sale was unquestionably irregular. This alone, however, does not justify the reversal of the sale. It must be established that the judgment debtor has suffered a substantial injury by reason of the irregularity. The fact that no bidders were present except the decree-holder himself is significant. Yet that also does not show that the price paid by the decree holder is inadequate. No evidence was adduced in the Court of first instance upon the question of value and the Court proceeded apparently on the valuation made in the suit for the purpose of assessment of Court-fees on the plaint. That assessment is, no doubt, admissible in evidence between the parties. But it is not conclusive, specially if it be true that, as alleged, the property is subject to a charge which may reduce its market value.

3. In the circumstances, we are of opinion that the Rule should be made absolute. The order of the District Judge, as also that of the primary Court is set aside and the case is remitted to the Court, of first instance for an investigation as to the value of the properties sold upon such evidence as may be adduced by both the parties. If the Court comes to the conclusion that the judgment-debtor has suffered substantial injury by reason of the sale, the sale will be set aside. If, on the other hand, it is established that the properties have not been undersold, the sale will stand confirmed.

4. We make no order as to costs either here or in the Court below.


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