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Nripati Nath Bhattacharjee Vs. Jatindra Kumar Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal577,91Ind.Cas.407
AppellantNripati Nath Bhattacharjee
RespondentJatindra Kumar Das
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 66, 90 - execution of decree-sale--proclamation, non-publication of-irregularity--waiver. - .....of the judgment-debtor on the ground that there had been irregularity in the sale and that no sale proclamation was issued in the case. this is ji6w the matter was opened to us, as the argument proceeded it was urged that the failure to publish the sale-proclamation was not merely an irregularity but an illegality and that the sale was, therefore, vitiated. the debt due to the decree-holder is rs. 7,000 and odd and it is said that the properties of the judgment-debtor which were sold for just over rs. 1,000 were in fact worth upwards of rs. 27,000.2. now, the facts are set out quite clearly and succinctly in the judgment of the learned subordinate judge. he states that in january 1922, the decree-holder applied for execution of the decree and that after the service of the notice the.....
Judgment:

Ewart Greaves, J.

1. This is an appeal by the judgment-debtor No. 4 from an order of the Fifth Subordinate Judge of Dacca, dated the 4th April 1923. The application before the learned Subordinate Judge was to set aside the sale of the properties of the judgment-debtor on the ground that there had been irregularity in the sale and that no sale proclamation was issued in the case. This is Ji6w the matter was opened to us, as the argument proceeded it was urged that the failure to publish the sale-proclamation was not merely an irregularity but an illegality and that the sale was, therefore, vitiated. The debt due to the decree-holder is Rs. 7,000 and odd and it is said that the properties of the judgment-debtor which were sold for just over Rs. 1,000 were in fact worth upwards of Rs. 27,000.

2. Now, the facts are set out quite clearly and succinctly in the judgment of the learned Subordinate Judge. He states that in January 1922, the decree-holder applied for execution of the decree and that after the service of the notice the appellant filed an objection in the month of April 1922 to the sale. Then it appears that in May 1922, he gave up a portion of his objection and two days later, namely, on the 8th May, the objection case was dismissed for non-prosecution. It further appears that on that day, namely, the 8th May, the appellant before us and other judgment-debtor who has not appealed, asked for a long time to make a payment and waived fresh sale-proclamation and also all irregularities in the previous sale-proclamation. Thereupon the learned Judge gave them three months time in which to discharge their indebtedness to the decree-holder and he fixed the 8th August 1922 as the date of sale. It appears that he also indicated at that time that if some substantial payment was made on account of the debt he would be prepared to favourably consider any further application for extension of time. No payment, however, was made and the sale took place on the 12th August the properties being purchased by the decree-holder on that date for Rs. 1,085. It appears that when the application to which this appeal relates was made to the learned Subordinate Judge the decree -holder expressed his willingness even then to give up the properties if he got his money and that he was prepared, moreover, to give time to the judgment-debtor to make the necessary payment in discharge of the decree. Even this concession, which was offered by the decree holder, apparently, was not acceptable to the appellant and lie relied on what he considered his strict right, namely, to have the sale set aside on the ground that there was no sale-proclamation.

3. Now, it seems to us that the learned Subordinate Judge has quite rightly held that on the failure to publish the sale-proclamation there was an irregularity that could be waived by the judgment-debtor and that it has been waived in the present case. We have, therefore, to consider in this appeal whether the order of the learned Subordinate Judge of Dacca in refusing to set aside the sale is a wrong order.

4. Now, there was a return by the peon of publication of the sale-proclamation but it appears from the evidence given on behalf of the appellant that there was, in fact, no service of the sale-proclamation. This is spoken to by no less than 5 witnesses, who gave evidence on behalf of the judgment-debtor, namely, witness No. 2 witness No. 3, witness No. 4, witness No. 5, and witness No. 6 who state that no sale-proclamation was served on the properties sold. No evidence was given on behalf of the decree-holder to contradict this and I think, therefore, we must accept that there was, in fact, no publication of the sale-proclamation. Now, is this an illegality as is suggested on behalf of the appellant or is it merely an irregularity? I feel myself no doubt that it is not an illegality but it is an irregularity which can be waived by the judgment-debtor. The question, therefore, is, has there been a waiver by the judgment-debtor in the present case of this irregularity? It is suggested that this is not so and that the judgment-debtor did not know at the time he waived the irregularity that there had been, in fact, no service and no publication of, the sale-proclamation. Now, there is no doubt that to waive anything, you must be aware of what you are waiving and you cannot be held bound by any waiver unless you are aware of what exactly you are waiving and what rights you are giving up. I think, there is no doubt in the present case that at the time the appellant waived any irregularity in the service of the sale-proclamation, he was fully aware of the facts of the case. This being so, it seems to me that the learned Subordinate Judge was perfectly correct in holding that he could not interfere having regard to the fact that there had been waiver by the judgment-debtor of any irregularity that might have taken place in connection with the sale-proclamation. Then it is suggested that there has been fraud and that there could be no waiver of fraud. There is no doubt, I think, that if facts were concealed by the decree-holder at the time of the waiver the judgment-debtor would not be bound by any waiver if he was ignorant of the fact owing to fraud practised by the decree-holder. But I confess that I have listened and listened in vain to discover what was the fraud upon which the appellant relies. The nearest approach that was suggested was the so called false statement in the return by the peon with regard to the service and publication of the sale proclamation. But there is no proof that this was instigated by the decree-holder so it cannot be deemed evidence of fraud on behalf by the decree-holder. Then it is suggested that the entries with regard to the value of the properties must have been false to the knowledge of the decree-holder and that this is a fraud practised by him on the Court and on the judgment-debtor. It does not seem to me that this is so even if the properties were under-valued. I do not think this is a fraudulent action on behalf of the decree-holder so as to entitle the applicant in the circumstances to the order which he seeks, namely, to set aside the sale.

5. It may be very unfortunate for the judgment-debtor that the properties which he alleges to be worth upwards of Rs. 27,000 have been sold at just over Rs. 1,000. But after all, it seems to me, that he has had abundant opportunity to produce the money and to pay to decree-holder had he desired to do so. The three months given him from April 1922 until the sale of the 12th August of that year do not seem to have been utilised by the judgment-debtor in any attempt to pay off the debt or to pay any sum Whatsoever on account thereof. Consequently it seems to me that he must be liable for consequence of his own act and if as I think there is no fraud and if as I think there is no illegality we should not be justified in the circumstances of the case in interfering with the order of the learned Subordinate Judge and setting aside the sale.

6. The result is that the appeal fails and is dismissed with costs. Hearing-fee 3 gold mohurs.

7. The record may be sent down at once.

Ghose, J.

8. I agree.


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