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Satish Chunder Rai Chowdhuri and anr. Vs. Thomas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal658
AppellantSatish Chunder Rai Chowdhuri and anr.
RespondentThomas and anr.
Cases ReferredLala Mobaruk Lal v. The Secretary of State
Excerpt:
sale in execution of decree - setting aside sale--irregularity and injury--civil procedure code, act xiv of 1882, section 311. - .....v. mahabir pershad singh i.l.r. 9 cal. 656 : l.r. 10 i.a. 25. in that case their lordships of the privy council said : 'the high court, having held that the non-statement of the amount of revenue in the proclamation was an irregularity, proceeded to try the question whether the irregularity had caused substantial injury to the applicant. they say : 'but it may be reasonably supposed that the non-specification of the government revenue in the sale proclamations published is one of the causes which caused the diminution in the price. there was no evidence at all on the subject. it appears to their lordships that the high court could not, without evidence and upon a mere supposition, properly find that the non-statement of the revenue in the proclamation did cause an injury to the.....
Judgment:

Field, J.

1. This is an appeal against the order of the Subordinate Judge of Mymensingh, refusing to set aside a sale on the grounds that there was irregularity in publishing or conducting such sale; and that the applicants had sustained substantial injury by reason of such irregularity.

2. The Judge in the Court below has found that there was no substantial f injury proved in the case, nor was there any irregularity in publishing or conducting the sale. He did not enter into the question, whether, assuming that injury and irregularity had been proved, such injury was by reason of such irregularity.

3. It had been contended before us by the learned Counsel for the appellants that there was irregularity. The judgment-debtors, appellants before us, are minors; and the irregularity alleged is this. The sale was originally fixed for the 20th May 1884. On that date, an application was made by certain of the judgment-debtors (other than the minors, who are appellants before us) for a postponement, which was granted to the 26th 0 May. On this latter date the judgment-debtors again applied for a postponement, which was granted to 2nd June 1884. It is said that these postponements made a postponement of more than seven days, being, as a matter of fact, a postponement of twelve days; and that the subsequent sale without a fresh proclamation was a violation of the provisions of Section 291 of the Code of Civil Procedure. I should be disposed to agree with this contention and to say that there was an irregularity so far as regards the minors who we are not parties to the applications for postponement. Then, is there evidence of substantial injury? The Court below has found that substantial injury has not been proved. The evidence on this point has been read out and pressed upon us in order to induce us to come to a different conclusion; but I am not prepared to do so. But assuming that irregularity and injury have been proved, it is admitted that there is not evidence to prove that the injury was in consequence of, or by reason of, the irregularity. The case falls within the principle laid down in the case of Macnaghen v. Mahabir Pershad Singh I.L.R. 9 Cal. 656 : L.R. 10 I.A. 25. In that case their Lordships of the Privy Council said : 'The High Court, having held that the non-statement of the amount of revenue in the proclamation was an irregularity, proceeded to try the question whether the irregularity had caused substantial injury to the applicant. They say : 'But it may be reasonably supposed that the non-specification of the Government revenue in the sale proclamations published is one of the causes which caused the diminution in the price. There was no evidence at all on the subject. It appears to their Lordships that the High Court could not, without evidence and upon a mere supposition, properly find that the non-statement of the revenue in the proclamation did cause an injury to the applicant by causing an inadequate price to be bid at the sale.' The effect of this decision of the Privy Council has since been twice considered by this Court, first, in the case of Tripura Sundari v. Durga Churn Pal I.L.R. 11 Cal. 74 and again in the Full Bench case of Lala Mobaruk Lal v. The Secretary of State for India in Council I.L.R. 11 Cal. 200. In the latter case, it was the opinion of the majority of the Court that their Lordships of the Privy Council did not intend to lay down any positive rule applicable to all cases. By this we understand it to be meant that their Lordships of the Privy Council did not intend to lay down any positive rule as to what may or may not be evidence of cause and effect in all cases, though they did lay down that in the absence of all evidence proved, injury cannot be presumed to be by reason of proved irregularity. There may be cases in which a reasonable presumption arising from proved facts or created by law would be good evidence that the injury was the result of the irregularity. Such cases would not be affected by the Privy Council decision, the effect of which, as we understand the meaning of their Lordships of the Privy Council, is this: that there must be some evidence, and that in the absence of evidence to show that the injury is the result of the irregularity, it is not to be presumed from the proved existence of irregularity and injury that the latter has occurred by reason of the former.

4. In this case, assuming the irregularity and injury to have been proved there is no evidence that the latter is the result of the former.

5. The appeal is dismissed with costs.


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