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Purreshnath Biswas and ors. Vs. Beepen Chunder Shickdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal98
AppellantPurreshnath Biswas and ors.
RespondentBeepen Chunder Shickdar and ors.
Excerpt:
sale in execution of decree - irregularity--substantial injury--civil procedure code (act x of 1877), section 293. - .....the sale was made on the ground that there had been substantial irregularity in publishing the sale-proclamation, and that the judgment-debtor in consequence of such irregularity, sustained substantial injury. the irregularity is said to consist in this, that the sale-proclamation was not published in the village. three of the persons, whose names were inserted in the peon's report as having been present when the sale-proclamation was published, were called on the part of the judgment-debtor, and they denied that any sale-proclamation had been published in their presence. the other witnesses to the publication of the sale-proclamation were not called on behalf of the decree-holder; and there is in fact no evidence to show that the sale-proclamation was published, and no evidence to.....
Judgment:

Field, J.

1. This is an appeal against an order of the Munsif refusing to set aside a sale. The application to set aside the sale was made on the ground that there had been substantial irregularity in publishing the sale-proclamation, and that the judgment-debtor in consequence of such irregularity, sustained substantial injury. The irregularity is said to consist in this, that the sale-proclamation was not published in the village. Three of the persons, whose names were inserted in the peon's report as having been present when the sale-proclamation was published, were called on the part of the judgment-debtor, and they denied that any sale-proclamation had been published in their presence. The other witnesses to the publication of the sale-proclamation were not called on behalf of the decree-holder; and there is in fact no evidence to show that the sale-proclamation was published, and no evidence to rebut the testimony given by the above three witnesses. Under these circumstances, we must hold that the sale-proclamation was not published according to law.

2. Then as to the question of substantial injury, the Munsif, assuming the value of the property to be not more than Rs. 175, argues that the judgment-debtor sustained no substantial injury, because when the property was put up for sale, it was knocked down upon a bid of Rs. 260. In consequence of no deposit being made by the person who had made this bid, the property was immediately put up again and sold. The Munsif thinks that, because the judgment-debtor might, under the provisions of Section 293 of the Code of Civil Procedure, have recovered the difference between Rs. 260, the amount of that bid, and Rs. 50, the sum for which the property was ultimately sold, he cannot be said to have sustained substantial injury. This assumes that the property was sold for Rs. 260 at the sale, which was sought to be set aside. We think the Munsif was not justified in assuming this. It might be quite possible that the person who made this bid was a man of straw, and that the difference could never have been recovered from him. At any rate, under the provisions of Section 293, the judgment-creditor (as well as the judgment-debtor) could have applied to realize this difference; and, if he had succeeded in doing so, he would have deprived the debtor of the argument that he had sustained substantial injury. We think it would not be equitable to say that the judgment-debtor was bound to realize this difference, and that until he had tried to do so, or succeeded in doing so, the amount for which the sale was really effected ought to be taken to be the amount of this first bid, and not the amount for which the property was actually sold. There is evidence that the property was worth Rs. 175. There is no evidence that it was fairly valued at Rs. 50, for which amount it was sold at the sale sought to be set aside; and, under these circumstances, we think that the judgment-debtor did sustain substantial injury. We, therefore, reverse the Munsif's decree and set aside the sale with costs.


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