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Bonomali Mozumdar Vs. Woomesh Chunder Bundopadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal730
AppellantBonomali Mozumdar
RespondentWoomesh Chunder Bundopadhya
Cases ReferredGopee Nath Dobay v. Roy Luchmeeput Singh
Excerpt:
sale in execution of decree - irregularity--material injury--presumption--civil procedure code (act x of 1877), section 311--witnesses, laches in summoning. - .....by reason of such irregularity.' an argument has been addressed to us to the effect, that the fact of irregularity being proved, the court ought to presume substantial injury; and in support of this argument the case of gopee nath dobay v. roy luchmeeput singh (i c. l. r., 349), has been quoted. it appears to us, that the judgment of the learned judges in that case does not support the contention sought to be based thereupon: as we understand that judgment, it merely comes to this, that if the fact of irregularity is proved, and also the fact of substantial injury, then the court may reasonably presume that the substantial injury was due to the irregularity, or, as the words of the section show, was caused 'by reason of such irregularity.' we think that this is a reasonable.....
Judgment:

Field, J.

1. The first point, which it will be convenient to dispose of in this appeal, is the allegation that the appellant was not afforded fair opportunity of producing his witnesses. Now, the facts as to this objection are these. He applied for and obtained an order for the issue of a proclamation on these witnesses on the 8th January. He did not put in the requisite court-fees for the issue of these proclamations until the 25th January,---that is, seventeen days afterwards, although he was aware on the 8th January that the 5th February had been fixed for the hearing. Now, it appears to us, having regard to the ordinary despatch with which business is done in the mofussil, that he might have been well aware when he paid in the court-fees on the 25th January, after seventeen days, that it was improbable that these proclamations could have been served in such time as to allow of the witnesses being in attendance on the 5th February. As a matter of fact, the proclamations did not issue till the 2nd February, and although this delay of seven days in the office is a delay which would have given the appellant some ground of complaint if he himself had acted with reasonable expedition, yet, having regard to the fact that he himself delayed seventeen days in the first instance, we think he cannot be allowed to set up the laches of the office, so as to succeed in this appeal.

2. The next question is concerned with substantial injury. The provisions of Section 311 of the Code are:---'No sale shall be set aside on the ground of irregularity, unless the applicant proves to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.' An argument has been addressed to us to the effect, that the fact of irregularity being proved, the Court ought to presume substantial injury; and in support of this argument the case of Gopee Nath Dobay v. Roy Luchmeeput Singh (I C. L. R., 349), has been quoted. It appears to us, that the judgment of the learned Judges in that case does not support the contention sought to be based thereupon: As we understand that judgment, it merely comes to this, that if the fact of irregularity is proved, and also the fact of substantial injury, then the Court may reasonably presume that the substantial injury was due to the irregularity, or, as the words of the section show, was caused 'by reason of such irregularity.' We think that this is a reasonable presumption in most cases; and explained in this way, the judgment is one which has our concurrence. But it certainly does not support the argument of the learned pleader, that from the fact of irregularity a Court ought to presume that there was substantial injury,---a presumption which might be contradicted in many cases by the fact of the property having been sold for its fair value.

3. It is then contended, that in this case there is not an irregularity, but an entire absence of any notification, and that this being so, the provisions of Section 311 are not applicable. If the provisions of this section do not apply, we are not aware of any section of the Code under which this application could have been made; but it appears to us that the facts in this case, if true, would have amounted to an irregularity within the meaning of that section. The appeal is dismissed with costs.

Prinsep, J.

4. I am of the same opinion. I would only add that I have always considered the judgment in the case of Gopee Nath Dobay v. Roy Luchmeeput Singh (I C. L. R., 349) as bearing the interpretation put upon it by my learned colleague, and in that view, I have followed that judgment in other cases decided by me while sitting in other Division Benches of this Court.


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