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Basanta Kumar Biswas Vs. Mihirlal Biswas - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1386 of 1962
Judge
Reported inAIR1968Cal604,71CWN1044
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 21, Rule 90; ;Bengal Tenancy Act, 1885 - Section 174
AppellantBasanta Kumar Biswas
RespondentMihirlal Biswas
Appellant AdvocateBankim Chandra Ray (2), Adv.
Respondent AdvocateApurbadhan Mukherjee and ;Mukti Prasanna Mukherjee, Advs.
Cases ReferredManilal Mohanlal v. Sardar Ahmed. The
Excerpt:
- .....no other alternative than to confirm the sale. hence, in default of deposit of rs. 300/- by the decreeholder, the sale cannot be greeted to beset aside.14 but the fact is that the decree-holder made rain by giving a low value in the sale proclamation and thus purchasing it at a low price. if the judgment-debtor has not paid his debt there is nothing wrong in selling the judgment debtor's property for satisfaction of the debt at the same time the judgment-debtor should get a fair price for the property sold and the decree-holder should not be allowed to make an unconscionable gain. hence the decree-holder must pay the proper price in this matter, there is also involved some amount of inadvertence or carelessness on the part of the court and hence it is not enough for the court to.....
Judgment:

P. Chatterjee, J.

1. This is an application under Section 115 of the Code of Civil Procedure against a judgment and order passed by the appellate court dismissing an application for setting aside a sale and reversing the order of the second court of Munsif at Alipore in Execution Case No. 189 of 1956.

2. This application is by the judgment-debtor. The sale in question was held on 12th October, 1955 and the petition for setting aside the sale under Section 174 of the Bengal Tenancy Act was filed on 2nd January, 1959. The petitioners' case was that they had no knowledge of the sale till December, 1958 when the decree-holder came to take possession of the property by force. The case was that all processes were suppressed; that there was fraudulent suppression of all proceedings relating to the publication and conduct of the sale and, further, that the judgment-debtor was kept out of his knowledge of the remedy available to him for having the sale set aside, in other words, the petitioner requisitioned Section 18 of the Indian Limitation Act to avoid the bar of limitation The trial court set aside the sale with respect to one-third share of the judgment-debtor-petitioner. The trial court found that the judgment -debtor had no knowledge of the salt and that the property was sold at an inadequate price. Two of the judgment-debtors, who filed the application for setting aside the sale, settled the matter with the decree-holder the sale was therefore set aside only with regard to one-third share The property in question is 1-57 acres of land situated in a village the rent of the property was Rs. 18/12 as and the land was agricultural. Decree was obtained for Rs. 87 and odd on 2nd June 1955 for arrears of rent and the Execution case was started on 26th August, 1955 in respect of the said agricultural land The case of the petitioner was that the claim in the Rent Suit was false and the property was under-valued in the sale proclamation and there were other material irregularities and fraud In publishing and conducting the sale.

3. The appeal court, however, set aside the findings of the trial court and dismissed the petition. Against that order the present petition was filed by one of the judgment-debtors, who did not settle the matter with the decree-holder.

4. The question whether the processes were served or not is a question of fact. The appeal court found the factum of service of those notices. It also found that the decree-holder took delivery of possession after the sale was confirmed. The appeal court was inclined to find that there was under-valuation. The appeal court has not believed the judgment-debtor's case that the decree-holder came to take delivery of possession by force on 19th December, 1958.

5. The appeal court proceeded on the basis that as it was a Rent Execution case, the sale will have the effect of a rent sale under the Bengal Tenancy Act. The courts below did not consider that, at the date when the decree for rent was passed as well as on the date on which the application for the present execution was filed i.e. on 22nd June, 1955 and 26th August, 1955 respectively, there was no relationship of landlord and tenant as between the parties because the Estates Acquisition Act came into force in the meantime i.e. on 1st Baisakh, 1362 B. S. corresponding to 14th April, 1955 and the interest of the decree-holder vested in the State Government Hence, the safe would not have the effect of a sale under the Bengal Tenancy Act but would merely be a sale of the right, title and interest of the judgment-debtor in the proceeding and the decree-holder would not purchase the occupancy holding

6. The appeal court considered evidence on record and on a consideration of evidence came to the finding that the judgment-debtor failed to prove any fraudulent concealment preventing him from coming up to the court with an application for setting aside the sale within time. On this finding of fact, the court of revision has no power to interfere either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution.

7. But I have been rererred to a judgment of the Judicial Committee in Marudanaygam Pillai v. Manickam Vasakam Chettiar which has been considered by a Division Bench of this Court in Manmatha Nath Chakravarti v. Sachindra Kumar Chakravarti, : AIR1956Cal59 . The argument of the learned Advocate for the petitioner is that even if an application is filed under Order 21, Rule 90 of the Code of Civil Procedure and even if the judgment-debtor is not entitled to the benefit of Section 18 of the Indian Limitation Act, the court still has inherent power to set aside the sale.

8. The Judicial Committee in the aforesaid case reported in as follows:

'If he purchased at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud as the learned subordinate judge points out. The Court could not have allowed the respondent purchasing at a court sale to take advantage of Ms own fraud whatever the conduct of the appellant might be' The Judicial Committee held that the Court would set aside the sale provided (1) there be an initial misrepresentation of material facts and (2) there be subsequent suppression of material facts. If there be 'initial misrepresentation of material facts' the case comes within Order 21, Rule 90 of the Code of Civil Procedure or Section 174 of the Bengal Tenancy Act If there be subsequent suppression of material facts the case comes within Section 18 of the Limitation Act. In such circumstances the conduct of the judgment-debtor is not material. At p. 113 (of Ind App) :(at P. 70 of AIR) their Lordships held.

'the case falls within the language of Rule 90 that however dilatory and unsatisfactory the conduct of the appellant might have been he has not on the facts found debarred himself from the right to have the sale set aside.' The Judicial Committee said the bar of limitation was not there. A Division Bench of this Court in the decision in 59 Cal WN 1082 : (AIR 1958 Cal 59) considered the matter. Their Lordships considered the observation of the Judicial Committee at p. 112 (of Ind App) : (at p 70 of AIR) and found the provision of Order 21. Rule 90 proviso (ii) as in Calcutta would not in any way affect the decision of the Judicial Committee which was with reference to the law then in force in Madras. Their Lordships found that the second proviso would include a case of omission, deficiency and defect in a sale proclamation but not fraud in the causing of its drawing up and in the furnishing of particulars.

9. The aforesaid discussion will show that the Judicial Committee did not exercise inherent power of a court in setting aside the sale The sale was set aside on the petition under Order 21, Rule 90 which was allowed and the Judicial Committee found that as the conditions laid down under Order 21. Rule 90 were fulfilled the application would be maintainable. The Judicial Committee further referred to the suppression of material facts because the application was not within time Hence as suppression of material facts were proved as under Section 18 of the Limitation Act and as conditions laid down in Order 21. Rule 90 were also proved, the sale was set aside. In such circumstances, the sale would be set aside irrespective of conduct of the judgment-debtor and irrespective of the dilatory tactics that he might have adopted. Hence, the aforesaid decision of the Judicial Committee is no authority for the proposition that if there is fraud upon the court, the court must set aside the sale independent of the provision of the Limitation Act. If there be fraud upon the court, the conditions under Order 21, Rule 90 may be satisfied. The Code of Civil Procedure under Order 21 Rule 66 imposes upon the court the duty to draw up the sale proclamation after notices to the decree-holder and the judgment-debtor' and the court has ordinarily a duty to state the nature and value of the property. But in Calcutta there is a proviso to Order 21, Rule 66(2) which is as follows:

'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, if any, given by either or both the parties'. Therefore, if the value of the property is Given both by the decree-holder and the judgment-debtor the court will insert them in the sale proclamation; but if only one of them gives his value the court is also empowered to include that value it shall not be necessary for the Court itself to give its own estimate of the value of the Property But this does not mean that in every case the Court will leave the matter of valuation to the decree-holder particularly when the judgment-debtor gives no valuation. My learned brother Bijayesh Mukherji, J. in a case reported in (1967) 71 Cal WN 649 has taken the view that Order 21, Rule 66 of the Code does not relieve the court of it duty and the Court can take judicial notice of certain matters it has also been decided that the Court can correct it own mistakes if they are made inadventently or carelessly I entirely agree.

10. If the decree-holder gives a valuation which is very low and the court finds at the hearing of the application for setting aside the sale that the said valuation was very low and further finds that the court should have checked the said valuation there would be an inadvertent or careless omission on the part of the court which the court may correct he-cause there is an omission of its own: further the decree-holder should not be allowed to retain an unconscionable gain if he has made But before the court exercises its inherent powers to correct that mistake further considerations may arise. They may be (1) that the conduct of the judgment-debtor was such that the court would not be inclined to interfere in his affairs even though it committed an error and (2) if the interests of an innocent third party has intervened. Before the court exercises its inherent power in favour of any person the court will consider whether exercise of such power in favour of that person would result in an abuse of the process of the court or do hardship or injustice to innccent parties; such inherent power is exercised for the purpose of preventing abuse of the process of law and for doing justice between the parties. If, in any case, it appears to a court that exercise of such inherent powers would rather be an abuse of the process of law than preventing abuse of the process of law or would do rather injustice than justice, the court would not, because of the very provision of Sec. 151, exercise its inherent powers. I need hardly refer to the case of Zainul Abdin Khan v. Md. Ashgar Ali Khan Nanhelal v. Umrao Singh the Judicial Committee observed at p. 56 (of Ind App) = (at p. 36 of AIR) 'When once a sale has been effected, third party's interest intervenes, and there is nothing in this rule (Order 21 Rule 2) to suggest that it is to be disregarded.' Hence, if there be an innocent third party auction purchaser the court may not exercise its inherent powers if any, to set aside the sale which would affect the interest of the said third party This does not mean that in no case where the auction purchaser is a third party the court will interfere. I merely say if the case does not come under Order 21 Rule 90 or if it be barred by limitation, the court may in proper circumstances, exercise with caution its powers and correct its own mistakes.

11. Referring to the facts of this case, the finding of facts arrived by the appellate court below are (i) that the proclamation was served, (ii) that there was undervaluation and (iii) that there was no suppression which would bring the case within Section 18 of the Limitation Act Therefore, whatever be the merit of the petition under Order 21 Rule 90 the application will be rejected on the ground of limitation because it was filed more than three years after the sale. But the next question is: Should the sale be set aside by inherent powers if the court cannot set aside the sale under Order 21 Rule 90 of the Code or Section 174 of the Bengal Tenancy Act This matter was not urged before my brother Bijayesh Mukherji J. in the case referred to above. The sale in that case was set aside substantially under Order 21 Rule 90 of the Code read with Section 18 of the Limitation Act. But in my view, the application now in question under Section 174 is barred by limitation and must therefore be dismissed. The question is can the sale be set aside In exercise of the inherent powers of the court under such circumstances A sale is ordered under the provisions of the Code of Civil Procedure or under the provisions of the Bengal Tenancy Act, and the said statutes provide the remedy for setting aside the sale. The law is if a statute grants to a person (the decree-holder) a right to have the property of another (judgment-debtor's property) sold and further grants one or another remedy to the said another (judgment-debtor) for setting aside such sale that remedy will ordinarily be considered to be the exclusive remedy. No further remedy is available in a court unless granted by the statute concerned. That means that a suit would not lie for setting aside the sale though an appropriate proceeding may He for declaring the sale to be null and void. The Supreme Court decided so in Arjun Singh v. Mahendra Kumar, : [1964]5SCR946 :- 'If there are specific provisions in the Code ..... they exhaust the powers of the Court......; inherent power cannot be invoked to cut across the powers conferred by the Code.'

12. The question is if the ramedy granted by the statute, is not available, should the court grant the same remedy by exercising its inherent power The authorities answer the question in the negative. The Judicial Committee in Chhatraput Singh Dugar v. Kharag Sing Lachmiram, 44 Ind App 11 (AIR 1916 PC 64) relating to an insolvency matter observed at p. 14 (of Ind App) = (at p. 85 of AIR) 'a debtor who brings himself within the terms of the Act is not to be deprived of that right on so treacherous a ground of decision as an abuse of the process of the Court.' If a case does not come under Order 21 Rule 90 of the Code or Section 174 of the Bengal Tenancy Act or if it is barred by limitation. I find it difficult to hold that the court can set aside the sale in its inherent powers on the sole ground of correcting an inadvertent error or carelest omission on the part of the Court The auction purchaser acquires a right under the law and ordinarily he should not be deprived of his property by exercising inherent power where the provisions of law grant him a safe position. In (with reference to Order 21 Rule 89) at p. 56 (of Ind App) = (at p. 36 of AIR) the Judicial Committee observed:- 'The only means by which the judgment-debtor can get rid of a sale which has been duly carried out are those in Rule 89' The Judicial Committee further said :- 'Upon the wording of R 92 the court shall confirm the sale.' In (1892) 19 Ind App 154 (P.C.) the Judicial Committee observed that the court had no power to set aside, on the petition of an auction purchaser, and hence it must it must be confirmed.

12-A. A decree-holder who has inserted a low valuation and has purchased a low valuation has gained an unfair advantage by the use of the rule of procedure and the Court has the interent power to take appropriate steps for such abuse of the process of law. In Raja Debi Baksh v. Habib shah (1913) 40 Ind App 151 (P.C.) the court set aside a decree under its inherent power and even though law recognises Order 9 Rule 13 as the appropriate steps for setting aside the deeree. The reason is the defendant was dead and the court did not then know it. The case did not really come under Order 9 Rule 13 The trend of modern judicial decisions has been that the decree-holder should not be allowed to make a profit by his own act of valuing the property too low and the court also has a duty to correct its own inadvertent or careless mistakes in not checking the sale proclamation and the court has therefore a duty to relieve the judgment-debtor of the hardship caused by the court's own ad and the decree-holder's action. The judgment-debtor purchased the said one-third share in 1953 for Rs. 500/-. The area of the land is 1 52 and it is agricultural land in the mufussil A court sale does not fetch the same price as in a transfer inter vivos Hence the decree-holder auction purchaser should be asked to deposit a further sum of Rs. 300/- in six months from this date

13. The next question is if the decree holder does no1 deposit the said amount what orders should be passed If the sale is directed to be set aside in default, the matter would be made simple, but in that case the sale is set aside on condition; such an order may be made under Order 21 Rule 90 of the Code or Section 174 of the Bengal Tenancy Act. But no such order can be made on the petition for setting aside the sale if the petition is itself barred by time After rejecting the petition under Order 21 Rule 90 or Section 174 of the Bengal Tenancy Act the Court cannot indirectly allow it and cannot invoke inheren power to circumvent the mandatory provisions of the Code vide : [1955]1SCR108 Manilal Mohanlal v. Sardar Ahmed. The sale cannot be set aside, if the said amount of Rs. 300/- be not deposited After rejection of the petition, the court will have no other alternative than to confirm the sale. Hence, in default of deposit of Rs. 300/- by the decreeholder, the sale cannot be greeted to beset aside.

14 But the fact is that the decree-holder made Rain by giving a low value in the sale proclamation and thus purchasing it at a low price. If the judgment-debtor has not paid his debt there is nothing wrong in selling the judgment debtor's property for satisfaction of the debt at the same time the judgment-debtor should get a fair price for the property sold and the decree-holder should not be allowed to make an unconscionable gain. Hence the decree-holder must pay the proper price In this matter, there is also involved some amount of inadvertence or carelessness on the part of the court and hence it is not enough for the court to express its regrets to the judgment-debtor and ask him to seek out a reliet it he has any in accordance with law The court should interfere as nobody should suffer because of the act or omission of the court, Hence, the only order that can be passed in default of payment is that the judgment-debtor may realise the amount of Rs. 386/- by execution of this order. He cannot be relegated to a suit for realisation of this amount and the court can direct realisation by execution of this order. This is in conformity with the decision in . Hence, I reject the petition under Order 21, Rule 90 of the Code. But I direct the decree-holder to deposit in the Executing Court a sum of Rs. 300/- within six months from this date for the unconscionable gain that he made In case of default, the petitioner judgment-debtor will realise the said sum of Rs. 300/- by execution of this order.

15. No order for costs.


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