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Maharaj Bahadur Singh of Balucher Vs. Sachindra Nath Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in113Ind.Cas.562
AppellantMaharaj Bahadur Singh of Balucher
RespondentSachindra Nath Roy and ors.
Cases ReferredBejoy Singh v. Ashutosh Goswami
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 66, 90, 92 - sale proclamation--omission to raise objection--objection at late stage--estoppel--undervaluation, effect of--offer to return property to judgment-debtor, evidentiary value of--setting aside court sale--general principles. - .....properties were put up for sale. lot no. 1 was withdrawn as a formal defect was discovered in the sale proclamation in respect of that property. the sale of property no. 2 was set aside by consent. the sale of lots nos. 3 and 4 has been confirmed by the court below and appeal no. 474 of 1925 refers to those lots. lot no. 1 was subsequently sold and the sale having been confirmed by the court below the judgment-debtor has preferred appeal no. 447 of 1925 in respect of that lot. i will take up for consideration appeal no. 474 in which most of the papers bearing on both the appeals have been printed. lot no. 3 is a garden called amarbagh. lot no. 4 is a piece of land in the town of berhampur with a small stable on it. in the sale proclamation the lot no. 3 was valued at rs. 200 and it was.....
Judgment:

Zahhadur Rahim Zahid Suhrawardy, J.

1. These two appeals arise out of two execution proceedings in execution of a decree obtained by the respondent opposite party against the appellant and another. The properties involved in these appeals were sold in execution of the decree and the judgment-debtor's objections under Order XXI, Rule 90 having failed he has preferred the present appeals. Four properties were put up for sale. Lot No. 1 was withdrawn as a formal defect was discovered in the sale proclamation in respect of that property. The sale of property No. 2 was set aside by consent. The sale of lots Nos. 3 and 4 has been confirmed by the Court below and Appeal No. 474 of 1925 refers to those lots. Lot No. 1 was subsequently sold and the sale having been confirmed by the Court below the judgment-debtor has preferred Appeal No. 447 of 1925 in respect of that lot. I will take up for consideration Appeal No. 474 in which most of the papers bearing on both the appeals have been printed. Lot No. 3 is a garden called Amarbagh. Lot No. 4 is a piece of land in the town of Berhampur with a small stable on it. In the sale proclamation the lot No. 3 was valued at Rs. 200 and it was purchased by the decree-holder for Rs. 650. Lot No. 4 was valued at about Rs. 300 in the sale proclamation and was purchased by the decree-holder at the sale for Rs. 950. The appellant in his application under Order XXI, Rule 90, raised two principal objections, namely, that the values of the properties mentioned in the sale proclamation were very low--the proper value of lot No. 3 being about Rs. 1,500 and of lot No. 4 Rs. 2,500; and hence the properties were sold at a very low price; and is secondly, that the sale processes were not properly published and were fraudulently suppressed. I will first examine the first ground of objection, namely, the undervaluation of the properties and the consequent sales thereof at inadequate prices. In order to fully realise the value of the objection it will be necessary to refer to certain proceedings in the execution case in the Court below. The Privy Council decree was obtained in 1921 and the application for execution thereof was made on the 28th April, 1922. On the 20th May, 1922, writs of attachment were issued in respect of various properties situated in different districts. On the 13th June, 1922, the writs of attachment were returned served and by the order of that date notice under Order XXI, Rule 66 was ordered to be issued fixing the 5th July, 1982, for return. That notice appears to have been served on 20th June and on the 5th July, 1922, the judgment-debtor appeared on notice and prayed for time to file objections. The Court granted 10 days' time to the judgment-debtor for filing objections and on the same date ordered the issue of sale proclamation under Order XXI, Rule 66 fixing the 17th August for sale of the attached properties. On the 15th July, 1927, the judgment-debtor No. 1 (the appellant before us) filed a petition of objection under Section 47, Code of Civil Procedure. The only grounds of objection mentioned in that petition were that the decree-holders were not entitled to interest on the sum decreed and that they were not entitled to the costs of the first Court. There was also the general objection that the properties were not liable to be sold in execution of the decree and that the decree could not be executed against the judgment-debtor. These objections were disallowed by the Execution Court on the 2nd August, 1922, except with reference to a certain matter with which we are not at present concerned. On that date, namely, the 2nd August, 1922, the appellant's son filed a claim on the ground that he being a member of the Mitakshara family was interested in the properties ordered to be sold. That claim was rejected on that very date. Then on the 8th August, 1922, one Narpat Singha (brother of the judgment-debtor Maharaj Bahadur) applied for a declaration of his mortgage lien on lots Nos. 1 and 3 of the attached properties for a sum of a lac of rupees with interest. The Court directed the Nazir to inform the fact of the claim to intending purchasers at the time of sale, Thereafter the appellant's son instituted a title suit and in that suit prayed for stay of the sale pending the decision of that suit, which was granted. There was an appeal to this Court from the order staying the sale, which was decreed and the order staying the sale was set aside. Thereafter on the application of the decree-holders for the issue of fresh sale proclamation it was issued fixing the 15th September for the sale of the attached properties. On the 15th September the appellant presented a petition in which he complained for the first time of the lowness of the prices mentioned in the sale proclamation and also objected to the sale on the ground of want of proper publication of the sale processes. All these objections were overruled except the objection with reference to lot No. 1 which was exempted from sale. The properties were sol I on that date and purchased by the decree-holders as stated above. On the 6th October, 1923, the appellant filed an application under Order XXI, Rule 90 praying for setting aside the sale on the ground of the value of the properties mentioned in the sale proclamation being low and of fraudulent suppression of the sale proclamation. This application was rejected by the Executing Court on the 6th June, 1925, and hence this appeal. I have given a detailed account of the proceedings taken in the Court below in connection with the execution to show that the appellant must have been aware of the contents of the sale proclamation and the date on which it was first issued, namely, in July, 1922. It is also difficult to believe that he was unaware of the issue of the sale proclamation and of its publication when his son and brothers were objecting to the properties being sold on various grounds which showed an intention on the part of the judgment-debtor to present all obstructions to the sale of the properties. It was on the date of sale, namely, the 15th September, 1923, that he for the first time raised the objection that the properties were undervalued in the sale proclamation. Under Order XXr, Rule 66 the Court is required to give notice to the decree-holder and the judgment-debtor for the purpose of settling the contents of the sale proclamation including the approximate price of the properties asked to be sold. After settling these points the Court is required to issue sale proclamation for publication. If any party omits on notice under Order XXI Rule 66 to put forward any objection it seems just and equitable that it should not be allowed to be raised at a subsequent stage of the proceeding and specially just on the day when the sale was going to be held. In the case of Girdhari Singh v. Hurdeo Narain Singh 3 I.A. 230 : 26 W.R. 44 : 3 Sar. P.C.J. 637 : 3 Suth. P.C.J. 294 : Bald. 12 (P.C.) there was a material error in the sale proclamation, namely, the Government revenue in respect of the property directed to be sold was mentioned much less than what it actually was. The judgment-debtor appeared and applied for postponement of the sale and agreed to the attachment and notification of the sale being maintained. Subsequent to the sale the judgment-debtor applied for the setting aside of the sale on the ground that the Government revenue was wrongly mentioned in the sale proclamation and of the consequent inadequacy of the price. Their Lordships of the Judicial Committee held that the irregularities complained of were sufficient to set aside the sale; but since in the application for postponement the judgment-debtor omitted to raise this objection and practically admitted that the notification was correct they refused to set aside the sale. The strongest case upon this point is the case of Arunachellam v. Arunachellam 15 I.A. 171 : 12 M. 19 : 5 Sar. P.C.J. 265 (P.C.). In that case, the judgment-debtors had an opportunity of objecting to the sale but they lay by and after the sale, but before it was completed, they presented a petition for setting aside the sale on the ground that the sale of the whole property was bad and that only a portion of it should have been sold. Their Lordships of the Judicial Committee in holding that the judgment-debtors should not be allowed to raise the objection at that stage made the following observation: 'It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant--that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That in their Lordships' opinion, cannot be allowed'. Their Lordships also referred to the case of Olpherts Macnaghten v. Mahabir Pershad Singh 10 I.A. 25 : 11 C.L.R. 494 : 9 C. 656 : 4 Sar. P.C.J. 417 (P.C.) where it was laid down that if there was really a ground of complaint and if the judgment-debtors would have been injured by proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. This view expressed in this case has been held in several cases of which it is enough to refer to the case of Pran Singh v. Janardan Singh 13 Ind. Cas. 337 : 14 C.L.J. 541 where Mookerjee, J., made the following observation: 'No doubt if the judgment-debtor, with notice of the proceedings, does not object to the entries in the sale proclamation at that stage (when the sale proclamation is settled), a subsequent objection by him on the ground of inaccuracy or insufficiency of description, is not likely to be entertained by the Court'. A similar view was taken in the cases of Behari Singh v. Mukat Singh 28 A. 273 : A.W.N. (1906) 3 : 3 A.L.J. 140, Raja of Kalahasti v. Maharajah of Venkatagiri 21 Ind. Cas. 389 : 38 M. 387 : 14 M.L.T. 320 : 25 M.L.J. 198. In the present case on the facts and circumstances of it I have no doubt left in my mind that the judgment-debtor was aware from July, 1922, of the contents of the sale proclamation and the prices of the properties mentioned therein. He had ample opportunities to take objection on the ground of mis-statement of value in the sale proclamation but he lay by and allowed the sale proceedings to proceed until the date of sale. The learned Advocate appearing for the appellant distinguishes the cases referred to above on the ground that in the above cases the judgment-debtor was held not entitled to object to the sale after the sale whereas in the present case the appellant objected to the sale on the ground of wrong mention of the value in the sale proclamation before the sale. On principle I do not see any difference between the two cases. The objection in the present case as regards undervaluation of the properties in the sale proclamation was first made on the date of the sale and immediately before the sale. If the judgment-debtor is allowed to object on such a ground at any stage of the execution proceedings before the sale there can never be any finality of those proceedings. In my judgment if a judgment-debtor after receipt of notice under Order XXI, Rule 66 or of the knowledge of the contents of the sale proclamation before it is issued neglects to take any objection to the proceedings he should not in justice be allowed to take such objections at the sale or afterwards. I am, therefore, of opinion that the judgment-debtor ought not to be allowed to object to the sale on the ground that the properties were undervalued in the sale proclamation.

2. Though in the above view it is not necessary to consider the other objections raised on behalf of the judgment-debtor, but as the points were fully argued before us it is better that we should express an opinion on the other grounds. It is urged that the properties were undervalued in the sale proclamation and, therefore, the sale ought to be set aside. In order that this ground should succeed it is not only necessary that the judgment-debtor should prove that the properties were undervalued in the sale proclamation but that by such undervaluation he has sustained injury, namely, that the properties were sold at inadequate prices. In other words, the undervaluation of the properties in the sale proclamation is a material irregularity and such irregularity caused injury to the judgment-debtor. Now lot No. 3 is said to be worth Rs. 1,500. It is said to be a mango orchard; but from the appellants' evidence it appears that it cannot be a very valuable property. The sumarnabis and tehsildar (accountant and collector) of the appellant admits in his evidence that there is no house within it and no gardener has been attached to it within the last 30 years. There is a tank in it which has no banks and there are some fruit trees in the garden the fruits of which were sold by the appellant once or twice within the last few years. I may mention here as I shall have occasion to remark hereafter that the appellant did not put himself into the witness-box and did not produce any papers to show the profits he made out of this property. Taking these facts into consideration it is difficult to hold that the value of the property given in the sale proclamation is grossly inadequate. Reference has been made in this connection to the leading case on this point viz., the case of Saadatmand Khan v. Phul Kuar 25 I.A. 146 : 20 A. 412 : 2 C.W.N. 550 : 7 Sar.P.C.J. 380 (P.C). The facts of that case were that the property therein was worth Rs. 10,000 but in the sale proclamation the value was mentioned to be Rs. 800 and it was advertised for sale for realising a debt of Rs. 500 only. Their Lordships said with reference to the facts of that case that it was indeed something more than the kind of irregularity which was commonly alleged, for it was a mis-statement of the value of the property which was so glaring in amount that it could hardly have been made in good faith, and which, however, it came to be made, was calculated to mislead possible bidders. A similar observation was made by their Lordships in the case of Tekait Krishna Prasad Singh v. Moti Chand 19 Ind. Cas. 290 : 40 I.A. 140 : 17 C.W.N. 637 : (1913) M.W.N. 487 : 11 A.L.J. 517 : 17 C.L.J. 573 : 15 Bom.L.R. 515 : 14 M.L.T. 37 : 25 M.L.J. 140 : 40 C. 635 (P.C.) where a property of which the annual income was about Rs. 5,000 was valued in the sale proclamation at Rs. 2,000. Their Lordships observed on the evidence that it was a gross undervaluation and that their Lordships had no doubt that the decree-holder had procured the insertion of this valuation for the purpose of making possible a purchase by him at that low figure. Now in the present case can it be said that the mis-statement of the value of the property was so glaring in amount that it could hardly have been made in good faith [Saadatmund Khan's case 25 I.A. 146 : 20 A. 412 : 2 C.W.N. 550 : 7 Sar.P.C.J. 380 (P.C)] or it was a gross undervaluation inserted by the decree-holder for the purpose of making possible a purchase by him at a low figure [Tekait Krishna's case 19 Ind. Cas. 290 : 40 I.A. 140 : 17 C.W.N. 637 : (1913) M.W.N. 487 : 11 A.L.J. 517 : 17 C.L.J. 573 : 15 Bom.L.R. 515 : 14 M.L.T. 37 : 25 M.L.J. 140 : 40 C. 635 (P.C.).] The difference between the value mentioned by the judgment-debtor and that mentioned in the sale proclamation is not so great as to be either a 'glaring undervaluation' or a 'gross mis-statement. In this connection I may mention, and I will refer to this fact again, that before the lower Court the decree-holder offered to return these properties at the prices at which he had purchased them but the offer was not accepted. A similar offer was made before us and it was not availed of.

3. Now as to the value of lot No. 3, there is only oral evidence and it is very easy for a witness to come and say that the value of the property was so much. The appellant has kept back best evidence on this point. If he had offered himself for examination the real state of the property and the value which he had paid for it and other matters could have been brought out. He further kept back his papers which would have shown what profits he made out of this property. In the absence of this evidence I am unable to accept the oral evidence of the witnesses who come and glibly say that the property is worth from Rs. 1,500 to Rs. 2,000. The learned Advocate for the appellant has laid great trees upon the fact that the property which was valued in the sale proclamation at Rs. 200 was purchased by the decree-holder at Rs. 650; and according to the learned Advocate, that was a clear evidence of under-valuation in the sale proclamation. It is difficult to make the deduction from this circumstance alone which the learned Advocate draws from it. At the time of the sale the decree-holder might have thought that the property was worth the amount for which he purchased. But admitting that the price paid by the decree-holder was about three times the amount mentioned in the sale proclamation, the undervaluation was not so gross as to amount to irregularity.

4. Then admitting that it was a material irregularity, the appellant to my mind has failed to prove that he suffered any injury from the undervaluation of the property. When we take into account the condition of this property as disclosed in the evidence of the judgment-debtor himself and the fact that at the time of the sale a claim of the appellant's brother to the extent of a lac of rupees with interest was published at the time of the sale, the value fetched at the sale cannot be said to be in any way inadequate.

5. We now come to lot No. 4. With regard to this property the evidence is that it has an area of 3 cattas and that there is a structure there which is called a stable with two rooms--one about 4 cubits wide and another a cubit and a half, in not a very habitable condition. The judgment-debtor had examined some witnesses and produced some documents to prove the value of certain properties in the locality. Exhibit 1 shows that 1 catta and 12 chittaks of homestead land with a brick built house standing thereon was sold for Rs. 1,025 in 1889. Exhibit D is another sale-deed which shows that 1 1/2 catta of jamai land was sold for Rs. 500. This is all the tangible evidence we have got; but it is difficult to say on the materials on the record that the value of lot No. 4 is much more than what it fetched at the sale. There is no evidence that any one was willing to purchase this property for more than what it was sold for at the sale; and there is the further fact to which I have already referred, namely, that the respondents are still willing to return this property if the price for which they have purchased it is paid back to them.

6. In this connection I should like to observe that it is not wise and desirable to interfere with Court sales on grounds not strong enough. As a matter of ordinary experience we know that Court sales are not popular and if the impression is created in the minds of the public that such sales can be set aside on slight grounds it will take away a great deal from the security which an act of the Court ought to give to its proceedings, much to the prejudice of judgment-debtors.

7. All the considerations to which I have referred with reference to lot No. 3 apply to this lot also and it is not necessary to refer to them. I am accordingly of opinion that it cannot be said definitely on the evidence on the record and in view of the circumstances of this case that this lot No. 4 was sold at a much lower price and thereby the judgment debtor has suffered loss. Three facts to which I have already referred stand out very prominent when one tries to discover if the appellant has any real grievance in the matter. One is that the evidence is so vague that it is very difficult for one to act upon it. There is no evidence that there was any person willing to purchase the properties and for higher prices. The second fact to which I have referred is that the decree-holders offered to return the properties to the judgment-debtor at the prices for which they bought them. We have authority that this circumstance may be taken into consideration in judging whether the judgment debtor has really suffered any injury by the sale. Bejoy Singh v. Ashutosh Goswami 83 Ind. Cas. 430 : 28 C.W.N. 552 : A.I.R. 1924 Cal. 58. The third circumstance which seems to be the most important is the absence of the appellant from the witness-box and holding back the best evidence. Take for instance the service of the notice under Order XXI, Rule 66 for the purpose of settling the sale proclamation, we have the evidence of the peon. He says that he went to the house of the judgment-debtor and found his darwan Hulas Singh at the gate and he was told that the judgment-debtor was upstairs. He wanted to serve the notice on the judgment-debtor but he was prevented by the darwan from entering the house. He sent information to the appellant through Hulas Singh and he was told that the appellant had asked him to hang up the notice on the outer door. Along with this notice on the appellant the peon also served a notice on another judgment-debtor, Surja Kumar Adhikari said to be the manager of the judgment-debtor. The peon says that he found Surja Kumar in the appellant's house; but he having refused to take the notice on being informed of its contents he served it by hanging it over the gate of the appellant's house. It is strange that neither the judgment-debtor nor his darwan Hulas Singh nor his manager Surja Kumar Adhikari has come to the witness-box and denied the service of notice. It cannot, therefore, be doubted that the notice was properly served upon the appellant.

8. In the view I take of the questions I have discussed above it is not necessary to enter into the evidence relating to the publication of the sale proclamation. I must admit that the evidence is not very satisfactory on behalf of the decree-holders. But considering that that evidence was given sometime after the publication and also the fact that the respondents had to examine a number of officers of Court of different places, the evidence may be accepted as satisfactory as against the evidence of the appellant which is almost nil. The evidence adduced by the appellant must, in the circumstances, be negative; but it is the evidence of persons for whom it was so very easy to deny facts. For instance there is the tailor Belait Khalifa who according to the serving peon was present at the time of the service of the sale proclamation. But he conies on behalf of the appellant and denies such service. If there was no service or there was fraudulent suppression of sale proclamation the respondent's first witness would not have mentioned the name of this witness as being present on the occasion. The Court below was impressed with the demeanour of respondents' witnesses and some of them appear to be more respectable. There is an ugly fact which does not speak well for the respondents. At the time of the sale the bid sheet shows that there were present only the respondents' Pleader and a person who was the tadbirkar of the respondents. It was foolish on the part of the decree-holders to have made a show of bid at the sale, but that is what they did. We may take it that there was no bidder at the sale except the decree-holders. But as I have said there was no material irregularity or consequent injury to the appellant, the insufficiency of the evidence with regard to the publication of sale on behalf of the decree-holders does not very much affect the case. To sum up my conclusion, I find against the judgment-debtor because I hold that notice under Order XXI, Rule 66, was served upon him and he neglected, if he had any real grievance, to take any objection as to undervaluation in time. He has further failed to prove that the properties were sold, considering that the sale was a Court sale with the risk of future litigation, at inadequate prices. He has also failed to prove that he suffered any real injury on account of the properties being sold at inadequate price when we take into consideration the fact that a title suit with regard to this property by his son is still pending and that the claim of his brother to the extent of a lac of rupees is still hanging over them. I am not satisfied further with the bona fides of the judgment-debtor in this case. In my judgment this Appeal (No. 474 of 1925) ought to fail and should be dismissed with costs five gold mohurs.

9. As regards Appeal No. 447 of 1925, all that I have said with reference to service of notice under Order XXI, Rule 66 applies to this case. I hold that notice was served upon the appellant and he failed to take objection on the ground of undervaluation in time. He, therefore, should not be allowed to take this objection at this stage. Apart from that circumstance the facts of this case are different from the other case and are such as not to entitle the appellant to any relief. The appellant's Pleader in the lower Court conceded that the appellant was unable to prove any material irregularity in the conduct of the sale. This admission may or may not be binding upon the appellant but it is quite justified in the circumstances of the case. Lot No. 1 which is the subject-matter of this appeal is a patni taluk with a rent of Rs. 1,705 a year. It was purchased by the respondent at Rs. 25,000 being 15 times the annual profit. I should say that in a Court sale the price fetched was quite adequate, when we take into consideration the fact as appears from the bid-sheet in this case that the Nazir proclaimed at the time that there was a claim for a lac of rupees with interest of the appellant's brother over this property. I need not in detail examine the evidence of publication in this case as I find that the appellant sustained no injury by the sale. The evidence moreover is not such as to induce me to hold that the sale proclamation was not properly published. In fact the evidence adduced by the respondents is much stronger. All the other circumstances which have induced me to hold against the appellant in the other appeal apply with equal force in this case. I accordingly dismiss this appeal with costs--five gold mohurs.

Graham, J.

10. I agree.


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