Skip to content


Sm. Bhabasundari Dassi Vs. Gopeswar Auddy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal159
AppellantSm. Bhabasundari Dassi
RespondentGopeswar Auddy and ors.
Cases ReferredChundi Charan v. Banke Beharay
Excerpt:
- .....in kalyani debi v. hari mohan ghosh : air1929cal574 . there the mortgagor applied to set aside a sale on deposit of the balance of the decretal amount and 5 per cent. of the purchase money. the application was allowed and the auction-purchaser appealed. the appellate court dismissed the appeal and in the course of his judgment rankin c. j. said:the main difficulty arises by reason of the fact that that rule is framed in language, which though well adapted to mofussil practice, is not in terms applicable to the practice of the high court on its original side as regards sales held in execution of mortgage decrees. the amount to be deposited for payment to the decree-holder, it is said by the rule, is the 'amount specified in the proclamation of sale as that for the recovery of which the.....
Judgment:
ORDER

McNair, J.

1. Defendants 2 and 3 have applied to set aside a sale by the Registrar in execution of a mortgage decree. The mortgaged property is No. 12, Blackburn Lane in Calcutta and belonged to the Auddy family. Hari Charan who represented one branch of the family mortgaged his undivided half share in the property in 1931. The property was then the subject-matter of a partition suit in which in 1935 the southern portion of the property was valued at Rs. 11,438 and was allotted to Hari Charan. The northern portion valued at Rs. 11,025 was allotted to the other branch of the family. The final decree in the partition suit was passed in June 1935 and the mortgagee sued two months later to enforce his security. The present applicants are two of Hari Charan's sons and represent the mortgagor. The mortgagee obtained a final decree for sale of the mortgaged property on 27th February 1939. After two adjournments, Bhagabati Dassi, the wife of one of the owners of the northern portion, bought the property at the Registrar's sale for Rupees 11,500 on 16th March 1940. It is not disputed that this sum exceeded the reserve price and that the Registrar was entitled to accept the purchaser's bid. It is also admitted that the property has been scheduled for acquisition by the Calcutta Improvement 'Trust and that the Trust have valued it at about Rs. 18,500. That valuation was accepted by the trustees at a meeting held on 6th April, and this summons to set aside the sale was taken out on 11th April 1940. The notification of purchase by the Trust appeared in the Gazette on 9th May.

2. The petitioners in their petition state that they are willing to deposit in Court 5 per cent. of the amount paid by the auction-purchaser and the costs of the Registrar's sale. No deposit has in fact been made. For the petitioners it is argued that, since this was a sale by the Registrar under the rules governing sales on the original side of this Court, the provisions of Order 21, Rule 89, Civil P. C., are not applicable and the Court has an unfettered discretion to decide whether the circumstances are such as to justify setting aside the sale, and if so, the conditions on which the sale should be set aside. It is further submitted that the circumstances disclosed, namely that the property is now scheduled for acquisition at a price 30 per cent. in excess of the price at which it was sold, justify the conclusion that the sale price was inadequate, and that the Court should exercise its discretion in favour of the mortgagor after awarding compensation to the auction-purchaser for the loss of his bargain.

3. The mortgagee originally opposed the application but at the hearing he supported the mortgagor. The question whether Order 21, Rule 89, Civil P. C., applies to sales by the Registrar held under a decree on the original side of this Court has been a vexed question for many years. In 1915 Woodroffe J. decided in Surendra Kristo Roy v. Gooroo Prasad ('17) 4 AIR 1917 Cal 51 that the provisions of Rule 89 were not intended to apply to a sale by the Registrar in conformity with the rules of the original side of this Court, without attachment of the property; and, in coming to that conclusion, the learned Judge pointed out the difference in procedure, and in the assessment of costs and commission, between sales on the original side of this Court and sales in the mofussil. In 1898 an earlier decision of the Full Bench of this Court had also considered the question in Kedar Nath Raut v. Kali Churn Ram ('98) 25 Cal 703. The provision of the Civil Procedure Code which at that time corresponded to Order 21, Rule 89 was Section 310A, and the Full Bench held that Section 310A did not apply to sales of mortgaged property under the Transfer of Property Act, and that Section 310A was inconsistent with the original side rules and was not applicable to such sales. It has now been decided that Rule 89 of Order 21 applies to mortgage suits, but I refer to the above Full Bench decision because in the course of his judgment Sir Francis McLean C. J. pointed out that the applicability of Section 310A to mortgage suits might have a mischievous tendency and would be inconsistent with the prevailing practice. In 1920 the question came before an Appellate Bench of this Court composed of Sir Ashutosh Mookerjee A. C. J., and Fletcher J. in Virjiban Dass Moolji v. Bissesswar Lal Hargovind ('21) 8 AIR 1921 Cal 169 on appeal from a decision of Greaves J. The trial Judge considered that he was bound to follow the judgment of Woodroffe J. in Surendra Kristo Roy v. Gooroo Prasad ('17) 4 AIR 1917 Cal 51. The appellate Court held that Order 21, Rule 89 applied, to sales held in execution of mortgages on the original side of this Court. That decision is undoubtedly binding upon me but the question has been subsequently agitated, and on the appellate side of this Court, in Kalyani Debi v. Hari Mohan Ghosh : AIR1929Cal574 . There the mortgagor applied to set aside a sale on deposit of the balance of the decretal amount and 5 per cent. of the purchase money. The application was allowed and the auction-purchaser appealed. The appellate Court dismissed the appeal and in the course of his judgment Rankin C. J. said:

The main difficulty arises by reason of the fact that that rule is framed in language, which though well adapted to mofussil practice, is not in terms applicable to the practice of the High Court on its original side as regards sales held in execution of mortgage decrees. The amount to be deposited for payment to the decree-holder, it is said by the rule, is the 'amount specified in the proclamation of sale as that for the recovery of which the sale was ordered,' and it is expressly provided by the last clause of the rule that nothing in Rule 89 shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. There are authorities which say that as this rule is a concession to judgment-debtors it is to be applied strictly; and there can be no doubt of the correctness of this in cases to which the rule can be applied strictly. When by reason of the fact that no 'amount is specified in any proclamation of sale as that for the recovery of which the sale was ordered,' it is impossible to apply those words strictly, it appears to me that in a matter of this kind what this Court has to do is to apply those words as fairly as possible to the circumstances of the sale on the original side.

4. In view of these decisions, it seems to me impossible to argue that the provisions of O.21, Rule 89 are inapplicable to an application of this nature; but so long as the original side rules in regard to Registrar's sales are retained, it is equally impossible to apply the words of Order 21, Rule 89 strictly. The rules contained in Chap. 27 of the Original Side Bales and Orders are rules framed under the provisions of Section 129, Civil P. C, which empowers a Chartered High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction which are not inconsistent with the Letters Patent. There is no suggestion that these rules are inconsistent with the Letters Patent, and so long as they are in existence, it seems to me that their provisions must be entitled to as much consideration as the rules contained in the schedule to the Code of Civil Procedure. The duty of the Court then in an application of this nature is, as I pointed out in National Insurance Co. Ltd. v. David ('37) 41 CWN 998, to apply the provisions of O.21, E.89 so far as the rules in chap. 27 will permit. It is noteworthy that the rules in that chapter do not appear to deal with applications by a judgment-debtor to set aside a sale owing to inadequacy of price. So far as I can discover the only rule which contemplates the setting aside of a sale is Rule 37, and that rule provides only for a sale to be set aside at the instance of a purchaser owing to a defect in title. Turning now to the provisions of Order 21 of the Code. Order 21, Rule 89 provides for the setting aside of the sale on depositing in Court

(a) for payment to the purchaser a sum equal to 5 per cent. of the purchase money (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

5. Order 21, Rule 92 provides that the above deposit must be made within 30 days from the date of sale. The liberty to make the application is a concession to the judgment-debtor, and in the case of a mortgagor it is a still greater concession, for the period of redemption is extended. It is not unreasonable therefore to call for strict compliance with the provisions of the rules. The Privy Council have made this clear in their judgment in Nanhelal v. Umrao Singh ('3l) 18 AIR 1931 PC 33 at pp. 386/387 where Sir George Lowndes in delivering the judgment of the Board says:

When once a sale has been effected, a third-party interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in Rule 89, viz., by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent. on the purchase money, which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale : see Article 166, Schedule I, Limitation Act, 1908. That this is so, is, in their Lordships' opinion, clear under the wording of Rule 92, which provides that in such a case (i. e., where the sale has been duly carried out), if no application is made under Rule 89 'the Court shall make an order confirming the sale and thereupon the sale shall become absolute'.

6. Admittedly no deposit has been made within the terms of O.21, Rule 89 (1) (a) or (b) and the question arises whether the application lies when no deposit has been made within the prescribed period. I do not propose on this application to consider what is the precise amount which the judgment-debtor should deposit under Order 21, Rule 89 (1) (b) read with the rules in Ch. 27 of the Original Side Rules and Orders. The question was considered by the Full Bench in Chundi Charan v. Banke Beharay ('99) 26 Cal 449.

7. In the present instance no deposit was made of the decretal amount and the decree-holder in his affidavit in opposition contended that for this reason, among others, the application must be dismissed. At the time of hearing however, the judgment-debtor and the decree-holder professed to have arrived at an arrangement by which the decree-holder's claim and costs would be satisfied out of the compensation awarded by the Improvement Trust. The terms of settlement are dated 4th July 1940 nearly four months after the sale. The judgment-debtor is therefore attempting to record an adjustment between himself and the decree-holder, which will deprive the purchaser of what she considers a good bargain, long after the time within which the decree-holders claim must be satisfied or adjusted or a deposit made in Court. It has been argued that, provided the judgment-debtor and the decree-holder are satisfied, the auction-purchaser cannot complain, as he gets compensation. This argument has been rejected in several reported cases, including the Privy Council case to which I have referred, where it is pointed out that once the sale is effected the purchaser's rights cannot be lightly set aside.

8. Even assuming that the Court has power in the circumstances to confirm the agreement after the thirty days provided by Order 21, Rule 92 have elapsed, there has still been no deposit of the five per cent. contemplated by Order 21, Rule 89 (1) (a) and for this omission no explanation is offered. Assuming that there is inherent power in the Court to extend the time, the facts of this case do not, in my opinion, justify the Court in exercising that power. Apart from the provisions of the Code, the original side rules provide for the sale certificate being issued as soon as possible after the sale and if no application is made to discharge the certificate within fourteen days from the date of the filing thereof the certificate is confirmed by effluxion of time. In any event the applicants seem to have disregarded the rules both under the Code and under the original side rules, and in the circumstances I have no hesitation in refusing their plea for help under the inherent powers of the Court. Nor do I think that they have any valid cause for complaint. They mortgaged the property while it was still unpartitioned. On a partition the commissioner of partition valued it in 1935 at rather less than Rs. 11,500 and in the same year the preliminary mortgage decree was passed. At the time of the sale the property was valued at the instance of the Registrar by an independent surveyor and a reserved price was fixed. After two infructuous sales the property was sold for a price which exceeded the valuation of the commissioner of partition and of the registrar's surveyor. There is no explanation why the Calcutta Improvement Trust should increase the valuation by more than one-third and although it may be galling for the mortgagor to see that large profit go to his cousin's wife, the property has fetched at the sale the figure at which it has been valued by more than one independent valuer. The application is dismissed with costs as of a motion. Certified for counsel.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //