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Nakul Chandra Das and ors. Vs. Rajendra Chandra Gangopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal873
AppellantNakul Chandra Das and ors.
RespondentRajendra Chandra Gangopadhya and ors.
Cases ReferredFani Bhusan Bhuian v. Surendra Nath Das A.I.R.
Excerpt:
- .....to serve the notice invalidated the sale. the learned subordinate judge, dissenting from this view, held that the non-service of notice upon the co-sharers in accordance with the provisions of section 158-b(2) invalidated the rent sale only and altered it to a sale in execution of a money-decree. in my opinion this is the correct view of the matter.3. it was next contended that cne of the judgment debtors, a minor, not having been properly represented, the court below ought to have held that this was an irregularity which vitiated the sale. the learned munsif, relying apparently upon a decision of this court in salauddin v. afzal began : air1925cal23 , gave effect to this contention. the case in question is authority for the view that in cases of decrees for payment of money fresh.....
Judgment:

Graham, J.

1. In this case a Rule was issued on the opposite party to show cause why the judgment and decree of the officiating Subordinate Judge of Barisal, dated the 4th August 1926, reversing a decision of the 1st Munsif of Barisal should not be set aside. Two points only have been argued before me on behalf of the petitioners : firstly, that the sale was bad by reason of failure to comply with the provisions of Section 158-B(2), Bengal Tenancy Act; and secondly, that one of the judgment-debtors, who was a minor not having been properly represented in the execution proceedings the sale was bad in law.

2. On the first point, the trial Court, relying upon a decision of this Court reported as Ahamad Biswas v. Bejoy Bhusan Gupta [1919] 23 C.W.N. 931 held that the provisions of Section 158-B(2) are mandatory and that the omission to serve the notice invalidated the sale. The learned Subordinate Judge, dissenting from this view, held that the non-service of notice upon the co-sharers in accordance with the provisions of Section 158-B(2) invalidated the rent sale only and altered it to a sale in execution of a money-decree. In my opinion this is the correct view of the matter.

3. It was next contended that cne of the judgment debtors, a minor, not having been properly represented, the Court below ought to have held that this was an irregularity which vitiated the sale. The learned Munsif, relying apparently upon a decision of this Court in Salauddin v. Afzal Began : AIR1925Cal23 , gave effect to this contention. The case in question is authority for the view that in cases of decrees for payment of money fresh appointment of a guardian ad litem is necessary in execution proceedings. It is not, however, an authority for holding that the omission to make such appointment will invalidate the sale. In a more recent case Matiur Rasul v. Abdul Said A.I.R. 1926 Cal. 109 the contrary view was taken, and where no guardian ad litem for a minor judgment-debtor was appointed in the execution proceedings and notice of execution in connexion with the issuing of Sale proclamation was served upon the minor judgment-debtor, it was held that this amounted to an irregularity, and that this irregularity could not be taken to have vitiated the sale, for non-representation of an infant by a guardian in execution proceedings is not in itself sufficient ground for avoiding an execution sale. The only point in which that case 'is distinguishable from the present case is that there a notice was served upon the minor judgment-debtor, which was not done in this instance. The same view with regard to the effect of non-representation of an infant by a guardian in execution proceedings was taken in Fani Bhusan Bhuian v. Surendra Nath Das A.I.R. 1921 Cal. 476.

4. Apart from those decisions there is another difficulty in the way of the petitioner. Under Order 21, Rule 90, Civil P.C., a sale can only be set aside on the ground of irregularity or fraud if substantial injury by reason of such irregularity or fraud is proved This is one of the points, No. 3, set out for decision in the judgment of the learned Subordinate Judge, and his finding on the point is that

there was no satisfactory evidence that the price fetched at the sale was inadequate.

5. That finding concludes the matter, as this Court cannot make an order setting aside the sale when it has been found that no substantial loss has been proved.

6. In the result the Rule fails and is discharged with costs. Hearing-fee : one gold mohur.


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