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Rangpur Loan Office Ltd. and ors. Vs. Rai Tarit Bhusan Roy Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal369
AppellantRangpur Loan Office Ltd. and ors.
RespondentRai Tarit Bhusan Roy Bahadur and ors.
Cases ReferredJogendra Nath v. Nabi Newaz
Excerpt:
- 1. these three appeals are directed against an order of the learned subordinate judge of bangpur dated 30th july 1936 by which he has refused to set aside a sale held on 12th august 1935, at that sale the decree-holder who is respondent 1 before us purchased the properties for rs. 48,400. the mukherjees were the proprietors of the properties which go by the name of the tushbhandar estate, chota taraf. they being disqualified proprietors, the estate was in the management of the court of wards from before 1927. on 10th february 1927, the manager of the court of wards borrowed a sum of rupees 1,20,000 from the rangpur loan office ltd., (hereafter called the bank) and executed on behalf of the proprietors a mortgage in favour of the latter hypothecating the properties which are the.....
Judgment:

1. These three appeals are directed against an order of the learned Subordinate Judge of Bangpur dated 30th July 1936 by which he has refused to set aside a sale held on 12th August 1935, At that sale the decree-holder who is respondent 1 before us purchased the properties for Rs. 48,400. The Mukherjees were the proprietors of the properties which go by the name of the Tushbhandar estate, Chota taraf. They being disqualified proprietors, the estate was in the management of the Court of Wards from before 1927. On 10th February 1927, the Manager of the Court of Wards borrowed a sum of Rupees 1,20,000 from the Rangpur Loan Office Ltd., (hereafter called the Bank) and executed on behalf of the proprietors a mortgage in favour of the latter hypothecating the properties which are the subject-matter of the proceedings before us. On 15th September 1930, the Bank borrowed Rupees 50,000 from respondent 1 on the security of a sub-mortgage of the said properties executed on the same date. The said respondent instituted his suit on the sub-mortgage on 8th December 1931 against the Bank and the Mukherjees represented by the manager of the Court of Wards. A preliminary decree for Rs. 50,586 odd was passed on 29th April 1932. The Bank paid some amount after the preliminary decree but as full payment was not made within the period of grace a final decree for Rs. 54,242 odd was passed on 26th June 1933. This decree was put into execution on 4th July 1933 by the said respondent. At the time of the settlement of the terms of the sale proclamation the respondent wanted Rs. 48,000 to be inserted in the sale proclamation as the probable value of the properties. Both the Manager of the Court of Wards and the Mukherjees objected to the said figure being inserted there, in. Their case was that the proper value was over Rs. 1,87,000. The Manager of the Court of Wards led evidence as also the decree-holder. The executing Court held that Rs. 1,31,773 was the fair value and directed that figure to be inserted in the sale proclamation. About this time the Court of Wards released the property and immediately thereafter the Collector of Rangpur took possession under Section 99, Cess Act, as cesses were in arrears. The Mukherjees moved this Court against this order on the ground that no opportunity had been given to them by the Subordinate Judge to lead evidence. This Court accepted the said contention and set aside the order of the Subordinate Judge and directed him to re-investigate the question of valuation. On remand, the Subordinate Judge found that the proper value was Rs. 1,09,000 and directed the same to be inserted in the sale proclamation. He also directed the fact that the Collector had taken possession of the zamindary proper, ties and that a landlord had filed a certificate for arrears of rent in respect of a tenure to be also inserted in the sale proclamation. In the sale proclamation it was notified that the properties would be sold at the monthly sales which was to commence at noon on 5th August 1935. The properties were however actually put up on 12th August 1935 and the decree-holder was the only bidder. His bid of Rs. 48,400 was accepted by the Court.

2. Four applications for setting aside this sale were filed in the Court below. The first, filed on 9th September 1935, was by the guardian of the minor judgment-debtor 6, Rabindra Nath Mukherjee. This was numbered in the Court below as Judicial Miscellaneous Case No. 68 of 1935/2 of 1936. The appeal to this Court is No. 579 of 1936. The second, third and fourth applications, all filed on 10th September 1935, were by the Mukherjee judgment-debtors 4 and 2 (ka), 5, 2 (kha) and 2 (ga), and by the Bank respectively. They were ultimately numbered Judicial Miscellaneous Cases Nos. 3 to 5 of 1936 of the Additional Court of the Sub ordinate Judge, Rangpur. Only Mukherjee judgment-debtor 3 did not file an application for setting aside the sale. Appeal No. 555 of 1938 is by the Bank and No. 602 by judgment-debtors 2 (kha), 2 (ga)' and 5. The other judgment-debtors have not appealed. All these applications proceeded on a number of common grounds, there being only few special grounds in them. All the common grounds were urged before us in Appeal No. 555 of 1936 which is the main appeal and with it we will deal first. The grounds urged in this appeal are (I) that the sale is a void sale, as it was held on a day other than a day fixed by the Court; (II) that there was material? irregularity in publishing the sale as the advertisements in the Calcutta Gazette and in the local newspaper, Rangpur Durpan, were defective, (III) that there was material irregularity in conducting the sale inasmuch as (a) the Nazir colluded with the-decree-holder and postponed the sale to suit the decree-holder's convenience, (b) the postponement of the sale from 5th to 12th August by the Nazir, even if no-collusion was established, was, at any rate, not in accordance with law, (IV) that the price fetched at the sale was grossly inadequate and the inadequacy was due to material irregularities. Ground No. III (b) has been urged alternatively to Ground No. I. The ground that the sale proclamation was not published in the locality was abandoned before us.

3. The facts bearing upon Grounds Nos. I and III (b) are these. In the sale proclamation as published in the locality it was notified that the sale would be held in the course of the monthly sales which would commence at 12 o'clock on 5th August 1935. In the bid sheet (1.60) the Nazir made entries to the following effect on 5th August 1935 'Presiding Officer absent. Put up on 6th August 1935 for sale at 12 A.M.' On the 6th, a similar entry was made by him and the sale was put over to the 7th. From the 7th to the 10th the Nazir recorded on the bid sheet that the sale could not be held for want of time; the 11th was Sunday and the properties were sold the next day, i.e. on the 12th. When Mr. Bose first opened the appeal he urged that the entries made by the Nazir on the bid sheet on 5th and 6th August were false entries, for on those dates the presiding officer was actually present in Court; for supporting his contention he drew our attention to order No. 36 at page 18 of the paper-book. Dr. Basak who appeared for the decree-holder purchaser raised the objection that Mr. Bose ought not to be allowed to raise the point in that form for the first time in this Court and he further submitted that if the appellants had made that case in the Court below, his client would have been able to refute it by producing authentic documents to prove that the presiding officer was actually absent from Court and that he passed Order No. 36 from home, he being allowed by the District Judge to stay away from the 1st to 5th August on account of illness and to do routine work at his residence and that he came to Court on 6th August, stayed for about half an hour and left Court before 12.30 P.M. When asked what these documents were, Dr. Basak stated that they were the leave application of the Subordinate Judge concerned, the order of the District Judge thereon, the diary of the Subordinate Judge and his leave register. As the point was a material one and as the charge against an officer of the Court, namely the Nazir, was a serious* one, we thought it not proper to shut out Mr. Bose on the ground that the matter was not urged by his client in the Court below; but at the same time considered it fair to give Dr. Basak an opportunity to substantiate his statements. We accordingly asked the learned District Judge to send those documents and on their receipt we took them in as additional evidence on the reasons recorded by us in the order sheet and they were marked by us as Exs. I to K. These documents bear out what Dr. Basak told us. They prove that from 1st to 5th August the presiding officer was absent from Court and that he passed Order No. 36 at home. On 6th August, he came to Court at 11-40 A.M. and left at 12-15 P.M. In view of this additional evidence, Mr. Bose frankly stated that he could not urge that the entries made by the Nazir on the bid sheet on 5th and 6th August were false entries.

4. He however changed his argument and for supporting his contention that the sale was void he relied upon Exs. I and J series, some of the documents which we admitted in evidence here. Mr. Bose puts his case in the following manner : The Nazir must have known of the District Judge's order, Ex. I(1) passed on the Subordinate Judge's application for leave, Ex. I. He therefore knew that the Subordinate Judge had passed Order No. 36 at home. He knew that the Subordinate Judge had not come to Court and further knew that he would not come to Court on 5th August. He therefore knew that he had been directed to hold the sale on the 5th in the absence of the presiding officer if the properties were reached on that date. The fact that the Nazir postponed the sale on the 5th shows that the properties were reached on that date. The Nazir had therefore acted against the express orders of the Court when he did not hold the sale on the 5th. The disobedience of the Nazir, says Mr. Bose, has the following effect : (a) that the properties were taken out of the monthly sales, and (b) that the postponements by the Nazir were illegal; the sale held on 12th August must be held to be a sale on a date not fixed by the Court and so void. The third line of argument adopted by Mr. Bose is that even if it be held that the properties were not taken out of the monthly sales, the Nazir had no power to sell properties in a different order than that indicated in the list prepared by the District Judge under Rule 233 of the Civil Eules and Circular Orders issued by this Court. If he takes up a sale, says he, in a different order, his acts are ultra vires and' the sale is a void one.

5. The first broad proposition that Mr. Bose wants to lay down is that if a sale is held by an officer of the Court at a place or at a time not fixed by the Court, that is to say, that if the officer commissioned by the Court to hold a sale, accepts bids, for being forwarded to the Court for approval, at a place or on a date not fixed by the Court, or at a place and on a date so fixed but at a different hour and the Court accepts the highest of such bids, the sale is not an irregular sale but a nullity. In support of this proposition he relied upon Motahar Hossain v. Mohammad Yakub : AIR1925Cal201 , Basharatulla v. Uma Charan (1889) 16 Cal. 794, Jayarama Aiyar v. Vridhajiri Aiyar (1921) 8 A.I.R. Mad. 583, Chedami Lal v. Amir Beg (1885) 7 All. 676, Sant Lal v. Umrao-un-nessa (1889) 12 All. 96 and Brahm Singh v. Bhandu (1921) 8 A.I.R. All. 102. Assuming that the above cases have been rightly decided, the appellants can only succeed if the properties had been taken out of the monthly sales by the act of the Nazir, for all those cases relate to sales not held in the course of monthly sales. The second part of his argument, as put by him does not depend upon the question whether the properties were sold at the monthly sales. He puts his argument in the following manner. Order 21, Rule 69, Civil P.C., no doubt, enables the officer conducting a sale to postpone it in his discretion when the presiding Judge is not sitting in Court. He admits that the proviso assumes the normal circumstance that the presiding officer is present in Court. But he says that there is nothing in that Rule which prevents the presiding Judge from taking away that discretion and that in the case before us that discretion had in fact been taken away by the Subordinate Judge. The postponements by the Nazir on 5th and 6th August were therefore illegal and the sale held on 12th August was accordingly void. He distinguishes Ranglal Singh v. Ravenswar Pershad (1912) 39 Cal. 26 on the ground that in that case the discretion of the Nazir to postpone the sale, when the presiding officer was absent from the station, had not been taken away by the Court.

6. In our judgment assuming for the present that the postponement of the sale on 5th and 6th August, by the Nazir was in excess of his powers, we do not think that the sale was taken out of the monthly sales by his act. The Court had ordered the sale to be held in the course of the monthly sales to commence on 5th August, at 12 noon and had issued the sale proclamation on that basis. It was for the Court and Court only to direct otherwise. It had not passed any order for taking it out of the monthly sales. The sale that was actually held on 12th August must, in our judgment, be taken to be a sale in the course of the monthly sales. Prom this conclusion of ours, it follows that the Nazir's authority to sell commenced from noon of 5th August, when the monthly sales commenced, and continued till the last sale in the monthly sale list was held. Any breach by the Nazir of the rules would accordingly be at most an irregularity and not an illegality. An examination of the terms of the order passed on 5th August, (Order 36) leads us to the conclusion that there was no definite and specific order on the Nazir to sell the property in question positively on 5th August. The order on him was to sell in due course, i.e. in due course of the monthly sales, which was to commence at 12 noon on that day. Rules 232 to 236 of the Civil Rules and Circular Orders issued by this Court regulate monthly sales. Rule 232 authorizes the District Judge to fix the commencing dates of the monthly sales. Rule 233 requires a list to be prepared and signed by him. The list is to include all the properties to be sold at the monthly sale, that is to say all the properties to be sold under orders of all the Courts, in the case before us, sitting at the district headquarters. It is to include sales of the District Judge's Court, of all the Subordinate Judges' Courts and all the Munsifs' Courts at the district headquarters, arranged serially. It has to be prepared by the District Judge and hung up at least 7 days before the monthly sales. The Nazir has to follow the order indicated in the list unless otherwise directed by the Court (Rule 234). If the Nazir takes a property out of its turn and puts it up for sale without a reference to the Court, the serial order fixed by the District Judge is wholly upset from that item, and if the contention of the appellants be accepted, that contention being that that sale would be illegal being regarded no sale at all, the position would be that not only the sale of the property taken out of its turn be void but all the other sales, may be many in number, held thereafter. Such a contention we cannot accept. The disturbance of the list by the Nazir may be an irregularity and in that case the sale would be not void but voidable if that irregularity had resulted in loss to the judgment-debtor or the decree-holder.

7. In the case before us having regard to the nature of order passed by the Court on 5th August, it cannot be said that there was a clear disobedience on the part of the Nazir in postponing the sale on 5th and 6th August. At most it can be said that the Nazir had committed a breach of Rule 234. Even here the materials are not sufficient, for the list prepared under Rule 233 is not before us. If the judgment-debtors had put the case before the Court below in the manner they have done before us, that list which was then available, would have been produced and it would have put at rest many of the controversies now raised. It would have possibly been shown that what are alleged to be postponements by the Nazir Were no postponements at all. The judgment-debtors used the first two entries in the bid sheet for the purpose of supporting their case of collusion between the Nazir and the decree-holder. As we have said the most favourable view that we can take on the facts on the judgment-debtors' side is that there was an irregularity in conducting the sale. That, by itself, would not entitle the appellants to relief, for we are of opinion that there is no evidence to connect the inadequacy of price fetched at the sale with this or any other irregularity alleged. The cases cited by Mr. Bose in support of this general proposition that a sale held at a place, or on a day or hour not fixed by the Court is no sale have now to be examined. The case before the Madras High Court, Jayarama Aiyar v. Vridhajiri Aiyar (1921) 8 A.I.R. Mad. 583, has no direct bearing on the case before us. There the sale was held at the time and place fixed by the Court and mentioned in the proclamation of sale, but the process-server at the time of the publication of the proclamation had gone out of his way and had proclaimed a different place of the intended sale. But the principle on which the decision proceeded has some bearing. It was pointed out that the difference between irregularity and illegality was one of degree. It was said that if

the irregularity be of so serious a nature as to render impossible the publicity which affords one main security for the fairness of public sales, it would be regarded as an illegality and the sale held is to be regarded as no sale.

8. If this principle be sound, every case of suppression of sale proclamation would make the sale a void one, a position difficult to maintain. The learned Judges relied upon Basharatulla v. Uma Charan (1889) 16 Cal. 794 as being the nearest analogue and held the sale to be void. The other cases cited on the point by Mr. Bose fall within two categories. They are either cases where the sale was commenced and completed by the officer conducting the sale before the advertised hour, or cases where the officer held the sale after and without knowing an order for postponement made by the Court. Cases falling within the last mentioned class were decided on the principle of delegation of authority to the officer by the Court, and it was said that the postponement of the sale by the Court had put an end to the officer's authority to sell. Of the first type, Basharatulla v. Uma Charan (1889) 16 Cal. 794 is the leading authority. The result in that case would have been the same, even if the Court had held that the sale was irregular, for, in that case there was evidence, which the Court accepted, that there was resultant loss to the judgment-debtor. The learned Judges, however, laid down the proposition that the sale which had been held before the appointed hour was no sale. The facts of that case and of the cases in the same line are different from the facts of the case before us, but as those cases have been cited before us as merely illustrating the principle contended for by Mr. Bose, it is necessary to examine the matter in some detail.

9. sWe may at once say that those decisions, if not overruled by necessary implication by the Judicial Committee, have been held inapplicable to monthly sales. The decision of the Judicial Committee which we have in mind is Ranglal Singh v. Ravenswar Pershad (1912) 39 Cal. 26. For estimating the effect of the decision in Ranglal Singh v. Ravenswar Pershad (1912) 39 Cal. 26, we would follow the report in Ranglal Singh v. Ravenswar Pershad (1912) 39 Cal. 26, for, in that report material portions of the judgment of the first Court and of the High Court are set out. In that case a property had been advertised for sale at the monthly sale which was to commence on 13th July 1903. It was actually sold on 20th July 1903 and purchased by the decree, holder. The judgment-debtor in support of his application to set aside the sale, on these facts, contended before the Subordinate Judge that the sale was an irregular one on the ground that the property was sold on 20th July, without a fresh sale proclamation as required by Section 291, Civil P.C. of 1882. His contention rested on the hypothesis that the sale had been postponed from 13th to 20th July, i.e. for a period exceeding seven days. The learned Subordinate Judge pointed out that there had not been a postponement exceeding seven days. The adjournment by the Nazir was for four days only, from 13th to 16th July, on the ground of absence of the presiding officer, that on 17th July, the Court refused an adjournment and the sale commenced actually on 18th July, that is within seven days of the advertised date, and went over to 20th July, the 19th being a holiday. The Subordinate Judge accordingly held that there was no irregularity as there was no breach of Part 2, Section 291 of the old Code which corresponds to Order 21, Rule 69, Sub-rule (2) of the present Code before its amendment in February 1933. He also held that the price fetched at the sale was adequate.

10. The judgment-debtor appealed to the High Court and expanded his contention there. He urged that the whole proceedings were illegal and void, as there was no warrant to hold the sale on 18th July, it having been fixed for 13th July. The High Court held that the sale could not be a void one, but if the facts were as urged by the appellant, the sale would be an irregular one and the judgment-debtor could not succeed as the property had been sold for an adequate price. The matter was taken up to the Judicial Committee of the Privy Council and there Sir Erle Richards on behalf of the judgment-debtor fell back not only on Section 291 of the Code but also urged that the sale was a nullity, as it had taken place on a date which was not the advertised date, and Basharatulla v. Uma Charan (1889) 16 Cal. 794 and a passage from the commentaries on the Civil Procedure by Woodroffe and Ameer Ali to the same effect were cited by him. The Right Hon'ble Mr. Ameer Ali, who was one of the authors of the commentary on the Civil Procedure Code cited before the Board, delivered judgment. He pointed out that the sale was held in the course of the monthly sales, and the sale was not even an irregular one. This meant a complete disagreement with Sir Erle Richards' contention that the sale was a nullity on the ground that it was held on a date other than the advertised date which was the date on which monthly sales were to commence. The case is an authority at least for the proposition that Basharatulla v. Uma Charan (1889) 16 Cal. 794 has no application to sales held in the course of monthly sales when it had been postponed by the Nazir for a few days in the course of the monthly sales. This disposes of the first part of Mr. Bose's argument.

11. If the sale in question had not been in the course of monthly sales but had been a sale definitely fixed to take place on a date which was not the date of the commencement of monthly sales, the question as to the correctness of the decisions in Basharatulla v. Uma Charan (1889) 16 Cal. 794 and cases of that type would have been material and we would have been bound to give our decision. As we have already held that the sale was in the course of monthly sales, we refrain from deciding this question. We may however point out in passing that in Harisadan Roy v. Shib Gopal Mitra (1921) 8 A.I.R. Cal. 597, the correctness of those decisions has been doubted. In Gobordhan Behary v. Sarat Chandra : AIR1933Cal486 , Motahar Hossain v. Mohammad Yakub : AIR1925Cal201 was noticed and doubted and in Jogendra Nath v. Nabi Newaz : AIR1938Cal699 , the said case was expressly dissented from. As we have further held that Order No. 36, was not a definite direction by the Court on the Nazir to hold the sale definitely on 5th August and what the Nazir did amounted at most to an irregularity we hold that the first ground urged by Mr. Bose has not been made out.

12. Regarding the other grounds, namely II and III (a), we do not see any substance in them. The sale proclamation published in the locality was according to Form 29 of Appendix E, Schedule 1, Civil P.C. Para. 3 of that Form notifies the commencing date and hour of the monthly sale and that the advertised property would be sold at the monthly sale. In the local Gazette lots Nos. 1 and 2, which were the only revenue paying properties in respect of which a revenue of over Rs. 500 was payable, were advertised in accordance with Rule 230 of the Civil Rules and Circular Orders, and all the properties were advertised in the local newspaper, the Rangpur Durpan. In neither of them was the fact that 5th August was the commencing date of the monthly sales mentioned and in neither of them was the fact that the Collector had taken possession of the properties under Section 99, Cess Act, mentioned. The last mentioned omission was not prejudicial to the interest of the judgment-debtor. The first mentioned omission was not, in our judgment, a material irregularity. Reading the advertisement as published in the local Gazette and in the local newspaper, an intending bidder would feel that it was necessary for him to appear at the place of sale on 5th August at noon, and not later, and if he in fact had gone to the place of sale at that time, he would have easily found out that sales were being held in the course of monthly sales and would have found the property he intended to buy on the list prepared and stuck up at the court house under Rule 233 of the Civil Rules and Circular Orders. We accordingly overrule this ground. Regarding Ground No. III(a), there is in our judgment complete lack of evidence. No one on behalf of the judgment-debtors says anything which would lead to a reasonable inference of collusion between the Nazir and the decree-holder's men. The whole case rests upon a suggestion made in the course of the argument and based on the slender fact that the decree-holder's son and an officer of his came to Rangpur from Calcutta on the morning of 12th August, and not earlier. The suggestion is that the Nazir must have been told by somebody on behalf of the decree-holder that the decree-holder could not attend before 12th August. This is pure hypothesis. We have it in evidence that the decree-holder received a communication in Calcutta from his pleader that the properties were likely to be reached on 12th August. His son and his officer Radhica started from Calcutta on 11th August, and reached Rangpur on the 12th morning. We do not see how these facts can establish collusion. The pleader at Rangpur knew on the 10th, which was a Saturday, that the properties were not reached on that date. From the position in the list prepared under Rule 233 he could have roughly formed an idea that the properties would not be reached earlier, and that there was a likelihood of their being reached on 22th August. As has been pointed out by the learned Subordinate Judge, a letter written on the 10th from Rangpur would reach Calcutta the next morning. Two trains leave Calcutta at night and reach Rangpur the next morning. We do not accordingly see our way to accept the suggestion of the appellant that 12th August was the date pre-arranged between the Nazir and the decree-holder's men.

13. The last ground that remains for consideration raises the question of price. The properties were twice valued by the executing Court, once at Rs. 1,31,773 and on another occasion at Rs. 1,09,000. No doubt the investigation was conducted for the purpose of inserting the value in the sale proclamation. Ordinarily, investigations for such purposes are not thorough or exhaustive, but the valuation so made gives an index. In this case before us however the investigation was more elaborate, for the parties fought over the matter of valuation keenly, as the proceedings would shew. The sum of Rs. 1,09,000 was fixed after the Collector had taken possession under Section 99, Cess Act. There is also the additional fact that the receiver who was appointed over the properties at the instance of the decree-holder shortly after the sale, gave the net yearly income at about Rs. 19,000. After he had taken charge of the properties from the Collector, who had released the same on being paid up in January 1936, he prepared a budget and submitted it to Court on 28th February 1936 for approval (Part I, pp. 74-75). According to the budget, Rs. 15,844 was the net expected profit alter taking as expenditure a sum of Rs. 3950 due on account of the additional burden of receivership (Rs. 3250 receiver's remuneration and Rs. 700 his travelling expenses). Even at six years' purchase value it would be about Rs. 1,08,000. Against these facts the only facts on which the decree-holder's advocate rely are (a) that land value has gone down recently on account of fall of price of crops; (b) that some of the properties were liable to diluvion, being on the banks of the river Teesta.

14. We see no force in these contentions. Before the depression it was almost a fixed rule' to value muffasil properties at 20 times the net profit. Where the revenue payable to Government was comparatively small even 25 years' purchase was taken. Owing to the fall in land value 10 or 12 years' purchase would be fair. And if every allowance be made on account of the risk of diluvion (on which point the evidence is scanty), we do not see how Rupees 48,400 would be a fair price, even at a court sale, of properties of which the net yearly income was about Rs. 19,000 and the revenue and head rent payable were about a third of the net profits. We therefore hold that the properties have been sold at an inadequate price. But, this finding of ours does not entitle the judgment-debtors to have a reversal of the sale. We have held that there was no irregularity in publishing and conducting the sale and even if the, postponement of the sale by the Nazir and his other acts were irregular, the judgment-debtors have signally failed to prove that the inadequacy of the price was due to the said irregularity. There is no evidence that intending bidders came on 5th or 6th August, and went away on the sale being postponed or that any bidder was misled and left the place of sale leaving the decree-holder master of the field. We accordingly overrule all the points urged in this appeal.

15. The special point urged in Appeal No. 579 of 1936 is that the minor, Rabindra Mohan Mukherjee (judgment-debtor No. 6) was not properly represented in the execution proceedings. The decree-holder proposed his mother, Chandibala Debi, as his guardian. A notice was issued by the Court on the said minor and the proposed guardian, and as the proposed guardian did not appear and express her consent, the Court appointed a pleader, Mr. Probodh Chandra Biswas, to represent him. It is urged that the notice had not in fact been served on the mother of the minor intimating that she had been proposed as guardian of her son. The.ie is no substance in this. The duplicate notce with the peon's return on it is Ex. C (II. 1). There is nothing on the judgment-debtor's side to displace what has been stated in the return. After his appointment Mr. Biswas wrote a letter to Chandibala addressed to her at her Tushbhandar house. The letter was returned with the endorsement that the addressee was not known. She was described in the letter as zamindar, the house was described as the zamindar's house, only her husband's name was wrongly given. The post office was within a few paces of the house and yet the letter was returned with the remark 'addressee not known.' In the evidence it is sought to be made out that she had been residing at Calcutta for a number of years, since her husband's death. But this evidence is, in our judgment, unreliable. Her statement and the statement of her husband's relation Monmotha Bhusan are hard to reconcile. It is also significant that long before the sale she knew that execution had been taken against her son and the fact comes out that she was being consulted by the other proprietors of the Tushbhandar estate in the matter of the execution proceedings (Monmotha Bhusan I, 80 and 81). Still she did not appear in Court and state that she was willing to represent her son. We do not find any substance in the point urged before us.

16. The special point taken in Appeal No. 602 of 1936 is that no notice under Order 21, Rule 22 was served on some of the heirs of the original judgment-debtor No. 2, Bidhu Bhusan Mukherjee. Bidhu Bhusan died on 5th February 1935 and the Court was apprised of that fact by the decree-holder on 9th March 1935. He took time on that date for the purposes of enabling him to make the necessary substitution. On 30th March 1935, his heirs were substituted and on the same day the Court issued notices under Order 21, Rule 22 on the heirs of Bidhu Bhusan. The notices were tendered to Abani Bhusan, the eldest son of Bidhu Bhusan. He took the notice in his name and signed an acknowledgment. His brothers, the other legal representatives of Bidhu Bhusan, did not appear before the peon but the notices in their names were tendered to Abani Bhusan who refused to sign in acknowledgment. Those notices were then affixed by the peon on the main door of the house (Ex. C-4-II.10). We think that this is good service on the other legal representatives of Bidhu Bhusan: Order 5, Rule 15 and 17 as amended in Bengal in 1928. We accordingly overrule this point. The result is all the appeals are dismissed with costs to the decree-holder respondent. Consolidated hearing fee of 30 gold mohurs in all the appeals.


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