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Ramesh Chandra Patranabis Vs. Birajasundari Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal349,108Ind.Cas.33
AppellantRamesh Chandra Patranabis
RespondentBirajasundari Gupta and ors.
Cases ReferredGangadhar Sarkar v. Khaje Abdul Ajij
Excerpt:
- .....of notice on the respondents under order 21, rule 66 and the defect was cured. on appeal the learned subordinate judge found that the previous application for setting aside the sale made by manoranjan and another was collusive, that the sale-processes were fraudulently suppressed and that the respondent had sustained substantial injury in consequence thereof. as to limitation, the learned subordinate judge held that he was satisfied on the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction-purchaser. he further found that the property sold also belonged to a deceased defendant and to some other defendants against whom no decree was passed and as there was no determination of the extent of the shares those defendants he.....
Judgment:

Suhrawardy, J.

1. This second appeal arises in connexion with execution proceedings and is by the auction-par-chaser in execution of a decree for rent by the landlord against 65 tenants. The tenure was sold on 24th July 1922 in execution of the decree. On 21st August. 1922 two judgment-debtors, Manoranjan Dhar and judgment-debtor No. 55, filed an application to have the sale set aside. That application was dismissed on 4th, April 1923. The sale was then confirmed and symbolical possession delivered to the auction purchaser on 27th February 1924. On 27th March 1924 the respondent, judgment-debtor No 56, filed an application under Order 21, Rule 90 and under Section 47, Civil P.C. to have the sale set aside on the ground of irregularities and fraud. The Munsif in the execution Court overruled all the objections to the sale made by the respondent and dismissed her application. He found that the application was barred by limitation, that the sale processes were properly served and that though the properties were not sold at adequate prices there was service of notice on the respondents under Order 21, Rule 66 and the defect was cured. On appeal the learned Subordinate Judge found that the previous application for setting aside the sale made by Manoranjan and another was collusive, that the sale-processes were fraudulently suppressed and that the respondent had sustained substantial injury in consequence thereof. As to limitation, the learned Subordinate Judge held that he was satisfied on the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction-purchaser. He further found that the property sold also belonged to a deceased defendant and to some other defendants against whom no decree was passed and as there was no determination of the extent of the shares those defendants he set aside the entire sale.

2. Two points have been urged before us in appeal on behalf of the appellant. The first is that there is no sufficient finding by the Subordinate Judge to bring the case under Section 18, Lim. Act, and, therefore, the respondent's application must be held to be barred by limitation. It is argued that the Subordinate Judge has not found that it was on account of the fraud of the decree-holder or the auction-purchaser that the respondents were kept out of the knowledge of the sale and that under Article 166, Lim. Act, unless time is extended by the operation of Section 18 of that Act, the period within which such application should be made must be counted from the date of sale. No doubt the Subordinate Judge has not said in so many words that it was due to the fraud of the decree-holders that the respondents were kept out of the knowledge of the sale. But reading the judgment of the learned Judge as a whole one can have no doubt that that was what he meant to find. He first discusses the evidence with regard to the service of the various sale-processes and comes to the conclusion that there was fraudulent suppression of the writs of attachment and sale proclamation as well as of the other processes in execution; and then, in considering the question of limitation, he observes that the evidence adduced by the appellant for' proving applicant's knowledge of the sale is of the most worthless kind and it bears the stamp of concoction. After considering the evidence the learned Subordinate Judge enters his finding on this point in these words:

I am satisfied from the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction-purchaser. I find accordingly that the application is not barred by limitation.

3. Beading the two findings together it is manifest that what the Subordinate Judge means to say is that there was fraudulent suppression of sale processes by the decree-holder and consequently the petitioner before him was kept out of the knowledge of the sale. But it is argued by the learned advocate 'appearing for the appellant that the Subordinate Judge has wrongly, placed the onus of proving the petitioner's knowledge upon the decree-holder or the auction purchaser. This contention, must be overruled, in view of the decision of the Judicial Committee in the case of Rahimbhoy Habilbhoy v. Turner (1893) 17 Bom. 341, where their Lordships in essence held that where fraud is committed by any party it lies upon him to show that the other party had a clear and definite knowledge of the facts constituting fraud at a date beyond the statutory period. The principle in this case has been followed in this Court in execution proceedings in the cases of Arjun Das v. Gunendra Nath Basu [1913] 18 C.W.N. 1266 and Bhusan Mani Dasi v. Profulla Kristo Deb A.I.R. 1921 Cal. 251. The objection on the ground of limitation must accordingly fail.

4. The next point is of some novelty and does not seem to have come up for consideration in any reported case. The reason may be that it is a matter of daily occurrence in the mofussil Courts and it has never been thought of sufficient importance to merit consideration. But, as it has been raised it should be examined. The point is that the Court below had no jurisdiction to set aside the entire sale on the application of one of 65 judgment-debtors. As regards the remaining judgment-debtors, two of them had made an application to set aside the sale and failed and the right of the other judgment-debtors to have the sale set aside is at the present moment barred by limitation. It is, therefore, submitted that the effect of setting aside the entire sale is to give the benefit of it to parties who are estopped from questioning the sale or whose right to question it has been extinguished by limitation. Now, the findings of the Subordinate Judge about the application by Manoranjan and another is that it was a collusive affair brought about by fraud and collusion to which the auction-purchaser (the present appellant) was also a party. As regards the fraud in connexion with the publication of the sale processes, he records his findings in these words:

After a careful consideration of the evidence on the record and all the circumstances I find that there was fraudulent suppression of the writ of attachment and sale proclamation as well as of other processes in execution and what the petitioner has sustained substantial Injury in consequence thereof.

5. The learned Subordinate Judge has set aside the whole sale on the ground that in so far as the interests of judgment-

6. This view cannot be supported in law because the sale purports to convey the interest of parties to the decree and does not affect the shares of those who are not bound by the decree; but the entire sale cannot on that account be set aside. The auction-purchaser in the circumstances cannot lay claim to the shares of persons who are not affected by the sale. But there is no reason why he should not get good title in respect of the shares of parties whose interest is legally conveyed by the sale.

7. Though the ground upon which the learned Subordinate Judge set aside the sale is not tenable, the question still remains whether on the findings arrived at by him the sale should be set aside in toto or in so far as it affects the respondents' interest in the property sold. The findings are that there was fraudulent suppression of the processes in connexion with the sale and that there was substantial injury inasmuch as the property was sold much below its proper price. Now these findings affect the entire sale. It cannot be said that a part only of the sale was affected by fraudulent suppression of the sale processes. Order 21, Rule 90 says:

Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets or whose interests are affected by the bale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it.

8. The rule as it stands does not contemplate a partial setting aside of a sale. In fact it means, if it means anything, that if a sale is bad on the ground of material irregularity or fraud, it can be set aside at the instance of any party whose interest is affected by the sale. Nor does the section, as it stands, give any indication whatsoever that all parties whose interests are affected by the sale must join in an application to have the sale set aside. Take, for example, the case of a judgment-debtor and his mortgagee. The value of the equity of redemption not being much, the judgment-debtor may not deem it to his benefit to question the sale. But the mortgagee who is directly affected by it may apply to have the sale set aside; and if on his application the sale is set aside it seems to me that it must be set aside in its entirety because it is impossible to maintain that the sale is to be held good to the extent of the interest of the judgment-debtor which is indefinite. Various other complications may arise if it is held that where the sale is bad on account of irregularities in the conduct of the sale it can be set aside in part. In the case of a joint decree where the shares of the different defendants cannot be defined, if one of the defendants succeeds in proving to the satisfaction of the, Court that the sale is fit to be set aside, the Court can only give him proper relief by setting aside the entire sale as it is not possible in the circumstances to set it aside in part, inasmuch as the interest of the successful defendant is not ascertainable. As at present advised I am quite clear in my mind that Order 21, Rule 90 speaks of setting aside a sale in its entirety, if it is proved that it is bad on the ground of material irregularity or fraud; and a sale which is affected by such defects cannot be set aside in part. An execution sale is either wholly good or wholly bad; it cannot be good and bad at the same time.

9. Reference has been made to the decision to which I was a party in the case of Rampada Nag v. Kanai Ray A.I.R. 1926 Cal. 1219 where it hat been broadly stated that a sale can be partiality set aside; and reliance was placed is that case on the decisions in Khairajmal v. Daim [1909] 32 Cal. 296 and Gopala Ayyar v. Ramanuja Chariar A.I.R. 1924 Mad. Mad. 431. On an examination of the facts of all these cases it appears that what was meant in Rampada Nag's A.I.R. 1926 Cal. 1219 by the observation that a sale can be partially set aside is that in the circumstances of that case the sale did not affect the right of the objecting party. In that case it was found that the real question to be decided in that case was whether notice under Order 21, Rule 22; was served on the judgment-debtors. It appears from a perusal of the judgment that a preliminary objection was taken on behalf of the respondent that no second appeal lay inasmuch as it was an application under Order 21 Rule 90. That objection was overruled on the ground that non-service of notice under Order 21, Rule 22 was a question which could only be raised under Section 47, Civil P.C. There are some observations made in that case which may' support the appellant's contention, but the main ground on which the decision is based is that where a notice under Order 21, Rule 22 is not served on 'the judgment-debtor his interest is not affected by the sale.

10. In Khairajmal's case [1909] 32 Cal. 295 the facts were that the plaintiffs were not affected by the execution sale under which the defendants claimed, to have purchased the property as the purchasers there occupied the character of mortgagees; and their Lordship's of the Judicial Committee observed that though the sale could not then be set aside or treated as void by reason of mere irregularity of procedure is obtaining the decree or in execution thereof yet the Court had no jurisdiction to sell the property of persons who were no parties to the proceedings or properly represented on the record. It was accordingly held that against such persons the decree and the sale under it were void even without any proceeding to set them aside. The observation of their Lordships in that case lends some colour to the view that if the sale was void by reason of irregularity of procedure the Court would have the jurisdiction to set aside the entire sale. In the case of Raja Gopala Aynar v. Ramanuja Chariar A.I.R. 1924 Mad. 431 the defect discovered was nonservice of notice under Order 21, Rule 22. The learned Chief Justice who presided over the Full Bench after quoting a passage from the judgment of the Privy Council in Khairajmal's case [1909] 32 Cal. 295 observed that it was a direct authority for the proposition that in such a case it was not necessary to apply to the Court to set aside the sale. In his Lordship's judgment the petitioner could proceed without applying to set aside the sale so as to avoid the limitation imposed by Article 166, Limitation Act. He could, according to the learned Judge's view, bring a suit for possession of the property sold to the extent of his share but for the provisions of Section 47, Civil P.C. It was accordingly a case in which the party could not apply to have the entire sale set aside on the ground on which he rested his case, but was entitled to claim relief to the extent of his share affected by the sale. On behalf of the respondent reference has beer, made to the decision in the case of Gangadhar Sarkar v. Khaje Abdul Ajij [1909] 14 C.W.N. 128, where it was held that at the instance of one of several co-owners of a putni taluk a sale of the taluk could be set aside as contemplated by Section 14, Reg. 8 of 1819. That decision is-based upon the wording of a particular statute and I do not propose to base my judgment on the ratio of that case though on principle it does lend support to the view which I have taken; especially where their Lordships observed:

The sale cannot of course be set aside is part, but there appears to be nothing to prevent a cosharer suing alone to set aside a sale.

11. Further, it will not be wrong to seek for analogy the principle underlying the; proviso to Order 9, Rule 13 or to refer to the inherent power of the Court to pass proper order in the interest of justice.

12. As regards the previous application by two of the judgment-debtors, it has been found by the Court below that it was a collusive proceeding. But even if it were otherwise I think the Court below would have been justified in setting aside; the entire sale on the findings arrived at by it.

13. The result of all these considerations is that we confirm the order of the Court below though not on the ground stated by it. This appeal accordingly fails and is dismissed with costs: 3 gold mohurs.

Graham, J.

14. I agree. There can be no doubt, on the findings arrived at by the Court of appeal below that the sale must be set aside so far as judgment-debtor 56 is concerned. The question then arises whether the learned Subordinate Judge is right in setting aside the entire sale. In my opinion he was. The sale cannot in my judgment be set aside in part so as to make it partly good and partly bad. It must stand or fail as a whole. It is either good or bad. It cannot in the nature of things he both good and bad. If it is set aside at the instance of some of the judgment-debtors, or of one of the judgment-debtors, that order will enure to the benefit of the other judgment-debtors. The adoption of a contrary view would lead to complications. I agree with my learned brother that the appeal should be dismissed.


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