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Gour Kishore Basak Vs. Chandra Mohan Bandopadhaya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.394
AppellantGour Kishore Basak
RespondentChandra Mohan Bandopadhaya
Cases Referred and Mahabtr Pershad Singh v. Bhanukdhari Singh
Excerpt:
sale in execution - irregularity--under-valuation of property in sale proclamation--non-specification of hour of sale--substantial injury. - .....property, there was a little irregularity in publishing the sale of that plot inasmuch as the sale proclamation does not appear to have been affixed in the collectorate. it also found that there was neither fraud nor collusion in the matter of the sale and that the judgment-debtor has not been able to show that the properties were sold at inadequote prices or that he had sustained substantial injury thereby.2. on behalf of the appellant, the following points have been taken before us in appeal:(1)that the properties have been undervalued and that the lower court should have held that that was an irregularity sufficient to set aside the sale on the ground of substantial injury caused.(2) that as no time was mentioned in the sale proclamation, the lower court shoald have held that the.....
Judgment:

1. The present appeal is against an order of the first Subordinate Judge of Mymensingh, dated the 21st March 1910, rejecting an application of the judgment-debtor, appellant, to set aside a sale. The lower Court has found that with regard to plot No. 1, which is a revenue paying property, there was a little irregularity in publishing the sale of that plot inasmuch as the sale proclamation does not appear to have been affixed in the Collectorate. It also found that there was neither fraud nor collusion in the matter of the sale and that the judgment-debtor has not been able to show that the properties were sold at inadequote prices or that he had sustained substantial injury thereby.

2. On behalf of the appellant, the following points have been taken before us in appeal:

(1)That the properties have been undervalued and that the lower Court should have held that that was an irregularity sufficient to set aside the sale on the ground of substantial injury caused.

(2) That as no time was mentioned in the sale proclamation, the lower Court shoald have held that the sale was illegal and could not stand.

(3) That the sale should have been set aside and the properties re-sold on the ground that the whole of the purchase money was not deposited in Court within the time allowed by law.

3. In support of the above points, it is contended that the evidence shows that some of the properties were under-valued in the sale proclamation. The lower Court has held that the judgment-debtor has not sustained substantial injury. The onus was on the judgment-debtor to prove that he has sustained substantial injury. We find that he has failed even to produce the deeds of sale under which he purchased the properties nor has he been examined as a witness. It appears that the judgment-debtor was called upon by the decree-holder to produce his kobalas but he did not do so. It is stated that he is a very old man and was ill. There is, however, no evidence to prove that owing to his illness, he could not produce the documents in question. Witness No. 2 for the appellant says that the judgment debtor is ill and so he has not come to-day.' We think that this is no evidence to show that he was really so ill that he could not come to Court to give his evidence. This witness was the son-in-law of the judgment-debtor. Witness No. 1, examined on behalf of the appellant says, that: 'I know not of any sale proclamation of any of the above named taluk.' It appears from his evidence that this man is a Kaviraj and he occasionally stays at his patient's houses for four or five days together-but he was not asked as to whether or the day of the publication of the sale proclamation, he was at home or not. We are of opinion that his evidence is of no value on the point. The witnesses who were called to prove the inadequacy of price are not definite in their statements. Witness No. 1 is not in a position to say what are the incomes, gross or net, of the properties sold. Similarly, wit-, ness No. 2 says the same thing. In these circumstances, we fail to see how the prices fetched by the sale are said to be inadequate. On a mere question of irregularity, the sale cannot be set aside. It must be shown that the irregularity has resulted in substantial injury. There was no fresh proclamation. We, however, find two petitions filed on behalf of the judgment-debtor, one dated the 30th October 1908, and the other dated the 21st December 1908, in both of which he prayed for time, and waived his right to claim a fresh proclamation.

4. It is contended that the sale should be set aside also on the ground that the hour of the sale was not mentioned. This was a material irregularity but, as has been held in the cases of Bhikari Misra v. Rani Surja Moni 6 C.W.N. 48; Surno Moyee Debi v. Dakhina Ranjan Sanyal 24 C. 294 and Mahabtr Pershad Singh v. Bhanukdhari Singh 31 C. 815 : 8 C.W.N. 686 the non-specification of the hour of sale does not warrant the setting aside of the sale. The applicant must satisfy the Court that he has sustained substantial loss by reason of the irregularity. It was so held in the last mentioned case.

5. As to the third ground, we find that there has been a clerical error made by the Nazir in making up the total of the highest bids on the different lots. The total is pat down as Rs. 6,700 but it should have been Rs. 8,200. It is contended that, inasmuch as the full amount of the purchase money was not deposited into Court within the time allowed by law under Order XXT, Rule 86, Civil Procedure Code, there should have been a re-sale as, under Order XXI, Rule 85, Civil Procedure Code, the decree-holder has not deposited the money in Court. Under Rule 72 of the same Order, the decree-holder purchaser has the right to set off the purchase money against the decretal amount, and this was done. Besides, the question does not arise. It has got nothing to do with the publication of the sale proclamation. It is conceded, however, on behalf of the respondent that if there is any such mistake, the judgment-debtor is entitled to be credited with the whole amount.

6. In the above circumstances, this appeal is dismissed with costs, the hearing fee being assessed at two gold mohurs.


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