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Madhub Chunder Nag and ors. Vs. Bandy Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal932
AppellantMadhub Chunder Nag and ors.
RespondentBandy Ali
Excerpt:
setting aside sale in execution of decree - material irregularities--civil procedure code (act x of 1887), sections 287 and 289. - .....notice of the court the existence of a mortgage on the property.2. it was further urged that the sale took place on, and not after, the thirtieth day from the publication of the notice. but it is clear that the appellant was present throughout the sale-proceedings, and that the sale having taken place on the advertised day, this fact was never brought to the notice of the court, or made the subject of any objection. the appellant not only himself attended the sale, but through a relative bid for, and purchased the property, which was, on his default to deposit the earnest-money, put up again and sold for rs. 90 less than was before bid. in so acting appellant consented to the sale being held on the advertised date.3. it was incumbent on the appellant to show that some substantial.....
Judgment:

Macpherson, J.

1. The appellant, judgment-debtor, made an application in the Court below for setting aside the sale held in execution of the decree passed against him, but did not succeed. From the order rejecting that application he now appeals to this Court, on the ground that there were material irregularities in publishing and conducting the sale which led. to substantial injury. Of the irregularities the most material one that has been pressed upon us is, that the sale-notification was not fixed up in the Collector's office as required by Section 289 of the Civil Procedure Code. The Subordinate Judge is, no doubt, wrong in his comments on this part of the case in considering that the publication of such a notice is merely a formal proceeding. But we think that, in this instance, the omission is not shown to have resulted in any substantial injury to the appellant, or to have injuriously affected the price obtained for the property.

2. Another ground taken is, that the rule framed by this Court under Section 287, which requires an affidavit as to search having been made in the Registry Office with regard to incumbrances, was not carried out. But this, in our opinion, is in itself no ground for setting aside a sale duly effected. The object of the rule is to provide the Court with the information required by Section 287 of the Civil Procedure Code, and a mere omission to comply with it will not have the effect of vitiating the sale. In this instance it further appears from the judgment of the Subordinate Judge that the Court was in possession of the necessary information, inasmuch as the judgment-debtor himself was examined, and brought to the notice of the Court the existence of a mortgage on the property.

2. It was further urged that the sale took place on, and not after, the thirtieth day from the publication of the notice. But it is clear that the appellant was present throughout the sale-proceedings, and that the sale having taken place on the advertised day, this fact was never brought to the notice of the Court, or made the subject of any objection. The appellant not only himself attended the sale, but through a relative bid for, and purchased the property, which was, on his default to deposit the earnest-money, put up again and sold for Rs. 90 less than was before bid. In so acting appellant consented to the sale being held on the advertised date.

3. It was incumbent on the appellant to show that some substantial injury had resulted from the irregularities complained of, and having wholly failed to show this, the sale cannot be set aside, and the appeal must be dismissed with costs.


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