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Phul Chand Ram Vs. Nursingh Pershad Misser - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal73
AppellantPhul Chand Ram
RespondentNursingh Pershad Misser
Cases Referred and Tara Prosad Boy v. Bhobodeb Roy
Excerpt:
appeal - civil procedure code (act xiv of 1882), section 244(c), 810-a, 311 order setting aside sale in execution of decree--mortgage decree--sale of mortgaged property--transfer of property act (iv of 1882) section 89--order absolute for sale. - .....on the 23rd may 1898 for a postponement for two months, waiving his right to the issue of a fresh sale proclamation, and he holds that the guardian of the minor only waived this right to the issue of a fresh sale proclamation on condition that the sale should be postponed for two months, whereas it was only postponed for one month; secondly, the judge says there was no upset price fixed for the property at the sale; thirdly, that the property was sold for an inadequate price, which seems to him 'to raise grave suspicion of trickery or fraud' and fourthly, that no order absolute for sale was passed upon the petition of the decree-holder dated the 17th march 1898.5. the learned pleader for the appellant contends that the district judge was not competent to allow the application under.....
Judgment:

1. This is an appeal from the decision of the District Judge of Bhagalpore,. dated the 7th March 1899.

2. The facts of the case are that a certain property, belonging to a minor, was, sold on the 20th of June last in execution of a decree, and that on the 25th or 26th of July (probably the latter date is the more correct 'one) the judgment-debtor made an application under Section 310-A of the Code of Civil Procedure to be allowed to pay in the decretal amount and to have the sale of the property set aside. The Munsif disallowed the 'application. The District Judge, although he held that the decree in execution of which the sale took place was a mortgage-decree, and that, according to the case of Kedar Nath Raut v. Kali Chun Ram (1898) I.L.R. 25 Cal. 703 Section 310-A does not apply to sales held in execution of mortgage-decrees, nevertheless reversed the Munsif's order, allowed the application and set aside the sale.

3. The decree-holder, who was the purchaser of the property at the sale, now appeals, and he contends that the order of the District Judge is wrong.

4. The grounds upon which the District Judge held that, notwithstanding the ruling above referred to, the sale should be set aside under Section 310-A, are: first, that the guardian of the minor applied on the 23rd May 1898 for a postponement for two months, waiving his right to the issue of a fresh sale proclamation, and he holds that the guardian of the minor only waived this right to the issue of a fresh sale proclamation on condition that the sale should be postponed for two months, whereas it was only postponed for one month; secondly, the Judge says there was no upset price fixed for the property at the sale; thirdly, that the property was sold for an inadequate price, which seems to him 'to raise grave suspicion of trickery or fraud' and fourthly, that no order absolute for sale was passed upon the petition of the decree-holder dated the 17th March 1898.

5. The learned Pleader for the appellant contends that the District Judge was not competent to allow the application under Section 310-A on these grounds.

6. The learned Pleader for the respondent argues, in the first place, that no appeal lies in this case, and secondly, that the Judge was right in the view he has taken.

7. With regard to the question of appeal in this case, we think we are concluded by the case of Kripa Nath Pal v. Ram Laksmi Dasya (1897) 1. C.W.N. 708 in which it has been held that an order under Section 310-A of the Civil Procedure Code is one under Section 244, Clause (c), and that being so, an appeal lies to us in this case.

8. But we are unable to agree that the District Judge Was right in allowing the application of the judgment-debtor in this case for the reasons assigned by him. It is clear to us that the reasons he gives for setting aside the sale are reasons which might have influenced him, had the application been made under Section 311 of the Civil Procedure Code, because the objection he raises to the sale are questions of irregularity in publishing or conducting the sale. We do not think that when an application has been made under Section 310-A which admits the sale to have taken place, and only asks to be allowed to pay in the decretal amount and have the sale set aside, it is open to the applicant to raise pleas which properly should he raised in an application under Section 311. To do so would be to act contrary to the spirit of the proviso to Section 310-A, and it would not, we think, be just that an applicant under Section 810-A should be entitled to impugn the sale on the ground of irregularity in publishing and conducting it, and at the same time carry on an application under Section 310-A, as it were, simultaneously.

9. But however this may be, we do not think that there are grounds for holding that the sale in this case was irregular. It seems to us rather that the sale was brought about by the gross laches of the guardian of the minor himself. He made an application for postponement for two months, waiving his right to a fresh Sale proclamation, but he made no attempt to find out for himself what orders were passed upon his application, and seeing that a postponement was granted for one month, it does not lie in his mouth to turn round and urge that the sale was irregular for the want of a fresh proclamation.

10. In the second place it does not appear to us that it is necessary that an upset price should be fixed in the sale proclamation.

11. Thirdly, there is no evidence in this case that the property has been sold for an inadequate price, and furthermore there is no evidence whatever that, if the price realized was inadequate, this was the result of any irregularity in the sale proclamation.

12. Then, as to there having been no order absolute for sale under the provisions of the Transfer of Property Act, we think that question is concluded by the cases of Siva Pershad Matty v. Nundo Lall Kar Maha-patra (1890) I.L.R. 18 Cal. 139 and Tara Prosad Boy v. Bhobodeb Roy (1895) I.L.R. 22 Cal. 931 and these rulings show that an order absoulte is not indispensably necessary, and it is sufficient that there is an order for sale passed on the application of the decree-holder, as was done in this case.

13. Finally, we may say that there is not the slightest reason for supposing that there was any fraud or trickery on the part of the decree-holder. The guardian never attempted to watch the proceedings in the execution case himself. He was apparently indifferent as to whether the postponement for two months was granted on his application or not; and, then, instead of finding out for himself what had been done in the case, he applied to the decree-holder's pleader, who at once told him when the sale had taken place. This information was given in the first week of July; so that if Section 310-A had been applicable to this case, the guardian might easily have paid the money within the thirty days allowed by law. But when he got this information, he did not put the money in within the prescribed period. It is true that the decree-holder's pleader informed him incorrectly as to the date of the sale. Bub this does not appear to have been done purposely, and was probably a clerical error on the part of the pleader. However this may be, there is no doubt that the provisions of Section 310-A do not apply to mortgage decrees, and that the order by the District Judge is entirely wrong and must be set aside.

14. We accordingly decree this appeal with costs.


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