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John Carapret Galstaun Vs. Syed Mahammad HusaIn Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal627,140Ind.Cas.732
AppellantJohn Carapret Galstaun
RespondentSyed Mahammad HusaIn Choudhury
Cases ReferredMadhu Sudan Choudhuri v. Mt. Chandrabati A.I.R.
Excerpt:
- .....it.6. it is admitted that there is in the office of the judgment-debtor a book which contains the processes served on his officers, (vide evidence of p. w. 4 kazi muzafar ali), but it has not been produced. it is true that the identifier or any witness to the service has not been examined but in view of the fact that there was no attempt to get a false return of service as regards the first notice, that the address which was wrong was amended and that the court eventually held that the amended notice was duly served, we think the denial of roshan ali uncorroborated by any other evidence is not enough for us to hold that the notice was not served in the manner stated in the return. we think it was equally open to the judgment-debtor to call the alleged witnesses to the service or at.....
Judgment:

1. This is an appeal by the decree-holder, auction purchaser, from an order setting aside a sale, held in execution of his decree, under Order 21, Rule 90 and Section 47 of the Code. The decree was a money decree for Rs. 14,000 odd passed on 28th January 1921, and at the date of the execution, namely 5th October 1926, amounted to over Rs. 16,000. The sale in execution took place on 17th May 1927, the price fetched being Rs. 8,200. On 30th August 1928 the judgment debtor applied under Order 21, Rule 90 and Section 47 of the Code to set aside the sale. In the application it was alleged that none of the requisite processes were served, that they had all been fraudulently suppressed, and that by means of such fraud, the decree holder had succeeded in purchasing the properties which are valued at Rs. 25,000 for the inadequate price mentioned above. The Subordinate Judge arrived at the following findings. That the properties sold were worth not less than Rs. 25,000 and that the price fetched at the sale was inadequate and caused loss to the judgment-debtor; that all processes were fraudulently suppressed; that the publication in the newspaper Charumihir was only on 3rd May 1927 while the date of sale was 16th May 1927 and so the interval was too short; that the judgment-debtor had knowledge of the sale early in Asarh 1335, i.e., June 1928, but as the notice under Order 21, Rule 22, Civil P.C. was not served, the sale was a nullity, and the rule of limitation was three years, the case being governed by Section 47 of the Code and Article 181, Lim. Act. On these findings the Subordinate Judge has set aside the sale.

2. As regards the value of the properties we see no reason to dissent from the opinion which the Subordinate Judge has expressed. The evidence, so far as the question of value is concerned, is practically one sided; and while we are not prepared to accept the exaggerated valuation which has been endeavoured to be made out by the judgment-debtor's witnesses we do not think that Rs. 25,000 is an over-estimate, at least upon the materials that are on the record. The judgment-debtor however had ample opportunities while the case was pending in the Court below as also since the date on which we heard this appeal and till now to find a purchaser for the amount of the decretal dues, but he has failed, though when examined as a witness in this case on 11th May 1929 he said:

Anyone will pay Rs. 15,000 for the properties sold. I have not so much cash money to spare.

3. There is therefore difficulty in finding a purchaser for Rs. 16,000 or so. On the whole however it is clear that the price fetched was not adequate and it must be held that the judgment-debtor has suffered substantial injury on account of inadequacy of price. On the question of the service of the processes the finding of the Subordinate Judge is in these words:

I think upon the entire evidence in the ease the conclusion is inevitable that there is no satisfactory proof that the processes were served. I must hold that the processes were not served. Indeed in this case no genuine attempt was made on behalf of the decree-holder to prove the services. In a case where the decree-holder gives up all attempt to prove the service of the processes, it renders no help to show how things were done or the manner in which the service was effected, I think the Court would be justified in holding not only that the processes were not served, but that they were fraudulently suppressed.

4. We have considered this finding and have scrutinized the materials bearing upon it with care and the conclusion that we have come to is that the finding cannot be supported. It is true that so far as oral evidence is concerned there is a paucity in what has been adduced on behalf of the decree-holder, but it is far from correct to say that:

no genuine attempt has been made on behalf of the decree-holder to prove the services,

or that the decree-holder has given up all attempt to prove the service of the processes,' seeing that the records of the services have all been produced on his behalf. In a ease in which the records of services were destroyed, the Judicial Committee observed that:

it would, in any circumstances, be open to persons challenging the sales to show that these records were inaccurate, and when they were destroyed, the burden of disproving the prima facie presumption that official acts were rightly carried out would rest with the two respondents (meaning the persons who sought to set the sale aside); see Madhu Sudan Choudhuri v. Mt. Chandrabati A.I.R. 1917 P.C. 30.

5. We are of opinion that the Subordinate Judge in his treatment of the case has entirely overlooked and ignored this presumption. To take the processes one by one. As regards the notice under Order 21, Rule 22, Civil P. C, the first notice issued was returned unserved as the judgment-debtor was not present at the address given and then the decree-holder filed fresh talabana and thereafter gave afresh address by a verified petition and on that an amended notice was issued: vide order sheet pp. 1-2. This notice purported to be served by a peon named Harendra Kishore Sen at the residence of the judgment-debtor on 3lst December 1926:. Ex. B. The return states that the judgment-debtor not being found, the notice was tendered to his officer Roshun Ali. But Roshun Ali refused to accept it and on that it was affixed to the front door of the Cutchery ghur at the residence of the judgment-debtor. The Court on 10th January 1927 recorded its finding that the notice was served and that the service was proved; vide order sheet, p. 2. In the present case it has been proved that the peon had been transferred to a different place and the return has been proved as being in his handwriting: vide evidence of O. W. 1 Aswini Kumar Burman. The judgment-debtor has deposed that he is not aware of service of any notice under Order 21, Rule 22, Civil P.C. Roshan Ali (P. W. 3) denies the service, but it is hardly expected that he would admit it seeing that the return itself shows that he refused to accept it.

6. It is admitted that there is in the office of the judgment-debtor a book which contains the processes served on his officers, (vide evidence of P. W. 4 Kazi Muzafar Ali), but it has not been produced. It is true that the identifier or any witness to the service has not been examined but in view of the fact that there was no attempt to get a false return of service as regards the first notice, that the address which was wrong was amended and that the Court eventually held that the amended notice was duly served, we think the denial of Roshan Ali uncorroborated by any other evidence is not enough for us to hold that the notice was not served in the manner stated in the return. We think it was equally open to the judgment-debtor to call the alleged witnesses to the service or at least to give evidence that they were non-existent, in order to show that the return was untrue. We hold disagreeing with the Subordinate Judge, that it has not been established that the notice under Order 21, Rule 22 was not duly served. In the opinion of the Subordinate Judge the strongest case of non-service was as regards this notice because he says:

It is at least clear that no notice under Order 21, Rule 22, Civil P.C., was served.

7. We now pass on to the other processes, but in view of the fact that the ease as regards them was, in the opinion of the Subordinate Judge, less strong we shall deal with them quite shortly. (Here the judgment discussed evidence and holding that the processes were duly served and there was no fraud on decree-holder's part it proceeded). Then there is the fact that the proposed sale was advertised in the newspaper Charu Mihir on 3rd May 1927 (Ex. H). There is no rule enjoining any particular period that should elapse since publication of it in a newspaper which a Court may direct under Order 21, Rule 67, Civil P. C, as there is in O.21, Rule 68, Civil P.C., about the period which should elapse from the date on which the proclamation is affixed on the Court-house. Assuming that there the period was not sufficiently long it is impossible to connect it with the question of loss because the inference would be too far-fetched to say that if a longer time had elapsed other persons willing to offer higher bids would have come in. The publication in the newspaper has another important bearing on the case. It negatives all suggestions as to fraud or a desire on the part of the decree holder to suppress the processes, which has been so strongly found against the appellant by the Subordinate Judge but for which in our opinion there is no foundation whatsoever. The result of our findings is that the decree-holder who was the only bidder at the sale purchased the properties at a low price but there was no irregularity in publishing or conducting the sale, nor any circumstance affecting the jurisdiction of the Court to hold the sale so as to make it a nullity.

8. On the findings that we have come to on the merits, the judgment-debtor's application to set aside the sale was hopelessly barred by limitation. On the finding that the notice under Order 21, Rule 22 was duly served the judgment-debtor cannot bring his case under Section 47 of the Code to have the sale declared a nullity and no question of the applicability of Article 181, Lim. Act, arises, and the case is a simple one governed by Article 166 of the Act. On the finding that there was no fraud, the question of the date of knowledge of the judgment-debtor is also irrelevant. The Subordinate Judge has overruled the judgment-debtor's plea that he came to know of the sale early in August 1928, and has held that he must have known of it in June 1928, that is to say in the month of Asar 1335 when the decree-holder's pleader saw him at Tangail. We may observe here that the Subordinate Judge has held that there was no service of the summons of Title Suit No. 66 of 1927 on the judgment-debtor on 27th August 1927, a summons which must have been apprised of the sale. With this finding we are unable to agree because the return of services of this summons, Ex. D, has been duly proved, and the serving peon Lokeman Ali (O.W. 2) has spoken to its correctness. This summons appears upon the return to have been tendered to the judgment-debtor's officer Roshan Ali, who of course denies this service as he did all others. It strikes us as somewhat singular that even when the judgment-debtor's mother has to serve a summons on him she should resort to the device of getting a false return submitted stating that it was tendered to the same officer, Roshan Ali. This is an additional ground why we do not believe the evidence of Roshan Ali at all. For the reasons given above we think the order which the Subordinate Judge has made cannot be supported and must be set aside. We accordingly allow the appeal and order that the respondents' application to set aside the sale be dismissed with costs in this Court and in the Court below. Hearing-fee in this Court is assessed at five gold mohurs.


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