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Bejoy Singh Dadhulia Vs. Ashutosh Gossami and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
Decided On
Reported inAIR1924Cal589,83Ind.Cas.430
AppellantBejoy Singh Dadhulia
RespondentAshutosh Gossami and ors.
Cases ReferredSadatmand Khan v. Paul Knar
- .....on this application, the judgment-debtor's ancestral house in the town of serampore was attached, sale proclamation issued on this 19th december, 1919, and in it the property was valued at rs. 5,000 which was the decree-holder's valuation. the judgment-debtors objected that the real value of the property was one lakh. the subordinate judge on the authority of a decision in this court ram kripal singh v. kedarnath bose (1916) 20 c.w.n. 44 (notes) directed that the value stated by the decree-holder and also that stated by the judgment-debtors should be mentioned in the sale proclamation, the question as to what was the proper value being left open. sale proclamation was issued in accordance with this direction on the 2nd march, 1920, fixing the 14th april as the date of sale. the.....

1. This is an appeal against an order of the Subordinate Judge of Hughly, third Court, granting an application by certain judgment-debtors to set aside a sale held in execution of a decree. This decree was obtained by Raja Bejoy Singh Dadhulia Bahadur, the appellant before us, in the Court of the Subordinate Judge of Faridpur, on the 5th April, 1918. The amount decreed was Rs. 20,774-10-9 for arrears of rant and the amount for which the property was attached with the addition of interest and execution costs was Rs. 24,018-1-3. After an order of a transfer, an application for execution was made in the Court of the Subordinate Judge of Hughly on the 21st September, 1919. On this application, the judgment-debtor's ancestral house in the town of Serampore was attached, sale proclamation issued on this 19th December, 1919, and in it the property was valued at Rs. 5,000 which was the decree-holder's valuation. The judgment-debtors objected that the real value of the property was one lakh. The Subordinate Judge on the authority of a decision in this Court Ram Kripal Singh v. Kedarnath Bose (1916) 20 C.W.N. 44 (notes) directed that the value stated by the decree-holder and also that stated by the judgment-debtors should be mentioned in the sale proclamation, the question as to what was the proper value being left open. Sale proclamation was issued in accordance with this direction on the 2nd March, 1920, fixing the 14th April as the date of sale. The judgment-debtors then appealed and obtained a Rule No. 275 against the order directing both valuations to be stated in the sale proclamation and the sale was stayed by an order in Rule No. 201. The appeal was dismissed and the Rule discharged by a Divisional Bench of this Court on the 18th May, 1920. The learned Judges referred to and distinguished the decision in the case of Saurendra Mohan Tagore v. Hurruck Chand (1907) 12 C.W.N. 542) and concluded their judgment in Rule No. 275 as follows : 'We are unable to hold that the Court can in no case mention in the sale proclamation the value as given by both parties. As, however, there will be a fresh sale proclamation, the Court will consider the desirability of attempting to arrive at an estimate of the value of the property to be sold.' On receipt of the order discharging the Rule No. 201 for stay of execution the Subordinate Judge directed on the :7th June, 1920, that execution should proceed and the sale proclamation was again issued on the 23rd June, 1920, fixing the 10th August for the sale. On the 3rd August the mother of the judgment-debtors claimed a right of residence and maintenance in respect of the attached property and asked that the property be sold subject to these rights. This application was rejected by the Subordinate Judge. Against this order a Rule No. 594 was obtained from this Court and execution was stayed for three weeks. On the 27th August, 1920, this Rule was discharged by a Division Bench of which one of us was a member. That Bench was not satisfied that the application was a genuine application on behalf of the Petitioner, but believed it to have been made in the interest of her sons, the judgment-debtors. Information of the discharge of this Rule reached the lower Court on the 3rd September, 1923, and on the 8th September fresh sale proclamation was issued fixing the 15th November, 1920, for the sale. On the 5th October, the judgment-debtors applied that the value of the attached property be ascertained by the Court on taking evidence. In support of this application a copy of the judgment of this Court in Rule No. 275 of 1920 was filed. It appears that for some reason which has not been explained, the full judgment had not previously been sent to the lower Court. This application was rejected on account of the judgment-debtors' delay in making it. The sale was held on the 18th November, 1920. The decree-holder was permitted to bid at the sale 'at the highest price' and the property was knocked down to his bid of Rs. 5,000.

2. We do not understand the meaning of the expression 'at the highest price,' but nothing turns on this, since the bid-sheet shows that before this bid was accepted the sanction of the Court was taken after drawing attention to the judgment-debtors as well as the decree-holder's valuation. The 20th December was fixed for the confirmation of the sale. On the 16th December, 1920, the judgment-debtors applied to have the sale set aside under Order 21, Rule 90, Civ. Pro. Code. There was considerable delay in the hearing of this case partly due to the failure of both parties to procure the attendance of their witnesses, and partly to the inability of the Court owing to pressure of other business to take up the case on some of the dates fixed. Judgment was delivered on the 18th August, 1921, granting the application and setting aside the sale, and it is against this order that the present appeal has been preferred.

3. The learned Subordinate Judge in his judgment has set out the following three points for determination. 1. Whether the proclamation was not served on the property? 2. Whether the property was undervalued by the decree-holder? 3. Have the applicants sustained substantial injury by the sale? He has found the first point in, favour of the decree-holder and the second and third points in favour of the judgment-debtors. He has also held that the under-valuation of the property by the decree-holder was a material irregularity in consequence of which the Court accepted his bid for Rs. 5,000. For 4he appellant it is contended that there was no material irregularity in publishing or conducting the sale, and, even if there were, the judgment-debtors have failed to establish that they have sustained substantial injury by reason of such irregularity. On behalf of the respondents, in addition to supporting the judgment of the lower Court, it is contended that his finding against them on the first point should be reversed.

4. On the first point relating to service of the sale proclamation on the property, after considering the whole of the evidence, we have come to the same conclusion as the lower Court. We agree with him that the absence of any motive for suppression of service is an important feature. We also agree that the direct evidence of service has not been successfully rebutted by evidence of witnesses who attempt to prove a negative. Our attention has been drawn to an alleged discrepancy in the evidence of the peon and the identifiers to the direction in which the house faced. But the former was speaking of the house and the latter of the gate of the compound, and it is not impossible that the house should face west and the gate north. The learned Subordinate Judge has given his reasons for disbelieving the judgment-debtors' witnesses. What appears to us even more important than his reasons is the fact that he doubted the veracity of these witnesses after they had given evidence before him.

5. But in dealing with the other points that arise in this case, we think the lower Court has overlooked the importance of the fact that both the decree-holder's and the judgment-debtors' valuations wore inserted in the sale proclamation. It has frequently been held that gross under valuation of the attached property, when accepted, by the Court and inserted in the sale proclamation, amount to a material irregularity which is likely to cause substantial injury. It is sufficient to cite the leading case on this point, the decision of the Judicial Committee in Sadatmand Khan v. Paul Knar (1898) 20 All. 412 (P.C.). In that case, a sale was set aside in which an estate of which the value was not less than Rs. 8,000 or Rs. 9,000 was attached for Rs. 565 and was sold for Rs. 670, the estimated value in the sale proclamation having been Rs. 800. But it is clear from the judgment that the principal ground on which that decision was based, was that the acceptance of the decree-holder's low valuation by the Court was likely to mislead bidders. At p. 417 importance is given to the fact that 'the value of the property to sell was given at Rs. 800' and at p. 418 it was pointed out 'that an intending purchaser would readily accept the assurance of the Court that an estate attached for Rs. 565 was worth no more than Rs. 800.' In the present case there has been no valuation at all by the Court. Though the statement of the two different valuations might not be of much assistance to an intending purchaser, it was not likely to mislead him.

6. It was contended on behalf of the respondents that the insertion of the two valuations and the omission of the Court to give its own valuation was itself a material irregularity. But in the case just cited, their Lordships of the Judicial Committee also held that the valuation by the Court was made gratuitously, or, in other words, that there was no legal obligation on the Court to enter the value of the property in the sale proclamation. No case has been cited to us in which it was held that the procedure adopted in the present case was irregular. There is, however, the authority of the case relied on by the Subordinate Judge when he settled the sale proclamation on the 21st February, 1920. Further the propriety of this procedure has already been considered by this Court when deciding Rule No. 275 of 1920, and we are in entire agreement with that judgment of which we have already quoted the concluding portion.

7. We cannot agree with the contention that the concluding remarks should have been treated by the lower Court as a direction to estimate the value of the property. They are clearly so worded as not to fetter the discretion of the lower Court. Lest our decision should be misunderstood as laying down a general rule that in every case where there is a discrepancy between the values of the property given by the decree-holder and the judgment-debtors, it is sufficient to state both in the sale proclamation, we will quote also another portion of this judgment with which we agree. 'Cases can be conceived when the Court might rightly consider that the value of the property as stated by both parties should be mentioned, though it is generally desirable that the Court should attempt to arrive at a fairly accurate value of the property to be mentioned in the sale proclamation in order to enable bidders to judge of the nature and value of the property.' We hold that this is one of those exceptional cases in which the Court was justified in stating both values instead of attempting itself to value the property. Our reasons for so holding are that the property was one that it was most difficult to value accurately and that to hold an enquiry would have further delayed proceedings which the judgment-debtors were obviously attempting to obstruct by every moans in their power.

8. Our findings, that there was no material irregularity in publishing or conducting the sale, are sufficient for the disposal of this appeal, and we will deal shortly with the other points argued before us relating to the valuation of the property and whether there has been any substantial injury. We agree with the learned Subordinate Judge that the value of the property is Rs. 40,000 with this qualification that this represents the price that would be paid by a willing purchaser to a willing seller. 1 kit the difficulty in this case is that the owners of the property are most unwilling to sell and there are no willing purchasers. The house is a large house in a Mofussil town and property of this kind is sometimes practically unsaleable. There is also evidence that the fact that it belongs to Brahmins reduces the number of possible buyers. Further, any one contemplating purchase would realise that if he bought the property he would have long and expensive litigation before he obtained possession. Under these circumstances it is not surprising that the decree-holder was the only bidder at the auction sale. Even he was not a willing purchaser and has expressed his willingness to part with his bargain if the amount due to him under the decree is paid. The decree-holder's, valuation was the price actually fetched at-the public auction and we cannot say that, from his point of view he grossly undervalued the property. Nor do we hold that the low valuation put by him on the property resulted in substantial loss to the judgment-debtors. There is no evidence' that any one was misled or deterred from bidding by the insertion of this low valuation in the sale proclamation, and we have pointed out that there were other-reasons for the absence of competing bidders. We are not satisfied on the facts of this case that the applicants sustained substantial injury by reason of the alleged irregularity.

9. We accordingly decree this appeal. We reverse the order of the lower Court setting aside the sale. The appellant will get his costs in this and the lower Court. We assess the hearing fee in this Court at 5 gold mohurs.

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