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Malik Fazlar Rahaman Vs. Jawahir Singh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.383
AppellantMalik Fazlar Rahaman
RespondentJawahir Singh and ors.
Excerpt:
execution of decree - sale--proclamation that property would he sold subject to charge--subsequent sale of some property free from incumbrance without fresh proclamation, whether valid. - .....the sale took place on the 21st february 1910, when the properties were purchased by the decree-holder for rs. 34,840. the allegation of the judgment-debtor is that the properties are worth at least rs. 1,60,000 and that there have been grave irregularities in connection with the sale proceedings. to one of these, our attention has been pointedly invited. it has been stated to us that on the 21st december 1909, the sale proclamation was published and it included a statement to the effect that the property would be sold subject to the charges under a prior decree. subsequently, on the 10th february, 1910, the decree-holder applied that eleven of the properties covered by the decree under execution, which are also included in the prior decree, should be sold free of all charges......
Judgment:

1. This appeal is directed against an order passed on the 28th May 1910, by the Court below confirming a sale in execution of a mortgage decree. The principal ground upon which the order is assailed is that the appellant was not allowed sufficient opportunity to prove his case and to show that he had suffered substantial injury by reason of material irregularity in the proceedings. We are of opinion that this ground has been amply established. The sale took place on the 21st February 1910, when the properties were purchased by the decree-holder for Rs. 34,840. The allegation of the judgment-debtor is that the properties are worth at least Rs. 1,60,000 and that there have been grave irregularities in connection with the sale proceedings. To one of these, our attention has been pointedly invited. It has been stated to us that on the 21st December 1909, the sale proclamation was published and it included a statement to the effect that the property would be sold subject to the charges under a prior decree. Subsequently, on the 10th February, 1910, the decree-holder applied that eleven of the properties covered by the decree under execution, which are also included in the prior decree, should be sold free of all charges. The Court apparently granted this application, but no fresh sale proclamation was published. Consequently no intimation was given to intending purchasers that the properties in question would be sold free of all charges, that is, free from the burdens under the previous decree. A purchase at an execution sale held under these circumstances, especially a purchase by the decree holder, ought to be scrutinized with great care. Consequently when the application was made by the judgment-debtor on the 21st March, 1910, impeaching the validity of the sale, it ought to have received greater care than it appeal's to have done. The decree-holders auction-purchasers, were apparently anxious, to have these proceedings disposed of as quickly as possible and at their instance, an early date was fixed for the hearing' of the application. The result was that the short time allowed made it impossible for the parties to have the notices properly served. Consequently on the 16th April, when it was found that the return of service of notice had not been received from Behar and that the summonses upon the witnesses had not been served, the Court was obliged to adjourn the case to the 7th May. On that date, the judgment-debtor filed a petition praying that as the notices sent to the Munsif of Behar for services had been returned unserved, on account of the illness of the identifier, further time might be given. The Court thereupon adjourned the case to the 28th. May, 1910. On that date an application was filed on behalf of the judgment-debtor that he had fallen ill and that one of his witnesses had not been served with summons. The learned Subordinate Judge then recorded an order to the effect that the illness had not been proved. But it is not shown that the person who appeared on behalf of the judgment-debtor was asked to adduce any evidence of illness. It is probable that if any such objection had been taken, the person who appeared on behalf of the judgment-debtor might have gone into the witness box and deposed that his principal had been ill. The learned Subordinate Judge, however, gave 5 minutes time to produce his witnesses. It was stated on behalf of the judgment-debtor that on that day he could not prove his case completely and that time was needed to produce the absent witnesses whose testimony would be very material. Bat the learned Judge declined to give time and the result was that the application was dismissed without any investigation. The very statement of these facts is sufficient to show that the case requires reconsideration. As we have stated the case involves questions of considerable importance relating to property of great value purchased by the decree-holder under circumstances which certainly require investigation.

2. The result, therefore, is that this appeal is allowed, the order of the Court below set aside and the case remanded to the learned Subordinate Judge, in order that the application of the judgment-debtor under Rule 90 of Order XXI, Civil Procedure Code, may be fully investigated. The costs of this appeal will abide the result. 'We assess the hearing fee at three gold mohurs.

3. Let the record be sent down as early as possible.


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