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Debi Prosad Bhakat Vs. Nagendra Kumar Nag and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in78Ind.Cas.727
AppellantDebi Prosad Bhakat
RespondentNagendra Kumar Nag and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 66, so - execution of decree--sale proclamation, settling of-- notice to judgment--debtor--notice affixed to door of house, whether sufficient service--failure to attent--objection to valuation, whether can be urged. - .....of the property, it was ordered3. that approximate value of the property should be entered in the sale proclamation as rs. 4,000 writ of attachment and sale proclamation were then issued, and an advertisement of the sale sent to the calcutta gazette for publication. september 15th was fixed as the date of sale. on that day one of the judgment-debtors (no. 2 not the contesting respondent) appeared and asked for an adjournment. the sale was put off to september 19th. on that date five of the judgment-debtors asked for an adjournment and the sale was again postponed but for one day only. on september 20th the sale took place and the property was sold for rs. 5,200 to the appellant debi prasad bhakat.4. november 3rd, 1921 the fourth judgment-debtor, nagendra kumar naga applied under order.....
Judgment:

Walmsley, J.

1. This appeal is directed against an order setting aside a sale under the provisions of Order XXI, Rule 90 of the Civil Procedure Code.

2. The circumstances are as follows : The landlord obtained a decree for arrears of rent in respect of a patni against five brothers and the widow of a sixth. The decree was for a sum of rather more than Rs. 12,000 with costs in addition. On June 22nd, 1921 the decree-holder applied for execution of the decree by the sale of the patni tenure and the Court ordered notices to be issued under Order XXI, Rule 66, and fixed the case for July 12th. On that date the decree-holder filed an affidavit to the effect that these notices had been duly served. At the same time, he asked that by way of precaution registered post-cards should be sent to the judgment-debtors, as none of them had entered appearance. The Court ordered this step to be taken and the case was adjourned for a week. On July 19th decree-holder filed and affidavit to the effect that the value of the patni tenure was Rs. 4,000 As the judgment-debtors did not appear and there was no other evidence before the Court in regard to the value of the property, it was ordered

3. That approximate value of the property should be entered in the sale proclamation as Rs. 4,000 writ of attachment and sale proclamation were then issued, and an advertisement of the sale sent to the Calcutta Gazette for publication. September 15th was fixed as the date of sale. On that day one of the judgment-debtors (No. 2 not the contesting respondent) appeared and asked for an adjournment. The sale was put off to September 19th. On that date five of the judgment-debtors asked for an adjournment and the sale was again postponed but for one day only. On September 20th the sale took place and the property was sold for Rs. 5,200 to the appellant Debi Prasad Bhakat.

4. November 3rd, 1921 the fourth judgment-debtor, Nagendra Kumar Naga applied under Order XXI, Rule 90, to have the sale set aside. In his petition he alleged that the writ of attachment and the sale proclamation were not duly served, that the value of the property was at least Rs. 18,000, that the sale was the result of collusion between his brothers and the decree-holder, and the purchase was made for the benefit of his brothers, and, that the inadequate value mentioned in the proclamation constituted a material irregularity.

5. The auction-purchaser opposed the application, but without success. The learned Subordinate Judge found that the value stated in the proclamation was less than half the real value, that this under-statement constituted a material irregularity, that the judgment-debtor had suffered material loss, that service of the notices under Rule 66 had not been proved, and that the evidence as to the contents of the post-card was defective. On these findings he set aside the sale. In consequence, the auction-purchaser has preferred this appeal. The decree-holder who is entered as a respondent supports him. The petitioner Nagendra opposes the appeal.

6. With regard to the notices under Rule 66 the peon reported that he could not effect personal service ; he says that he learnt from a villager that the female debtor was a parda-nashin lady and that three male debtors were inside the house and that as the male debtors did not come out and no one appeared on behalf of the lady he affixed the notices on the main entrance of the petitioner's house and of the house occupied by the three others.

7. I am disposed to think that this service was sufficient. It is not necessary to discuss the point, however, because there is the postcard notice. The form of postal service by registered post-card with an acknowledgment slip to be signed by the addressee. In spite of Nagendra's denial I am satisfied that it is his signature on the acknowledgment slip ; this view is the result of comparing the signature with the admitted signature on bhevaka-latnamah presented with the petition. The learned Judge appears also to think that the signature is Nagendra's, but he says that the evidence to show what message was written on the post card is defective. There is no doubt about the fact that the Court gave an order for the post-card notice to be issued, and the acknowledgment slip was returned to the Court. The decree-holder's agent was examined about the post cards : the record of his evidence is extremely meagre, but it seems impossible to think that it means anything less than that he wrote on the post-card that July 19th was fixed as the date for fixing details of the proclamation. There is further the fact that the petitioner did not produce any post-card to show that the one which he received contained a message of another kind. In my opinion, therefore, the learned Judge was wrong in holding that the servioe by postcard had not been properly proved. I hold that the petitioner did receive intimation by registered post-card that July 19th was fixed for settling details of the proclamation. That he received it in time for appearence to be possible is proved by the post-marks which show that the aoknwiedgment slip was back in Midnapur on July 18th. From evidence we know that petitioner's residence is only eight miles away from Midnapore. This finding alone would be enough to dispose of the appeal, but as all the evidence was placed before us I think I ought to deal with other arguments.

8. Regarding the petition for adjournment filed on September 19th it is curious that the order in the order sheet mentions that one of the debtors, the petitioner, did not join in it, for his name does appear in the petition. It is idle to speculate on why the order was recorded in such a form, for I think the petitioner should have the benefit of it.

9. The value of the property was entered as Rs. 4,000. The learned Judge says that it should have been entered as at least as much as Rs. 10,000 and he relies upon the entry made in another execution case (No. 18 of 1918). The order ran as follows : ' Let the properties sought to be sold be valued at Rs. 10,000 in the Sale proclamation as stated by the judgment-debtor petitioner in his petition of objection, but the decree-holder will not be bound to bid the properties at Rs. 10,000.' It is conceded that the property in that case was the patni tenure which forms the subject-matter of this appeal, but attention is drawn to the latter half of the order. I think the appellant's argument is correct: the Court did not in 1918 decide that the value of the tenure was Rs. 10,000 and it suggested that possibly the decree-holder would be allowed to buy it for less. I cannot, therefore, agree with the learned Judge that that order proves Rs. 4,000 to be inadequate.

10. There are other fragments of evidence on the record as to the value of the tenure. The petitioner's agent says that the patni includes 300 bighas of nij jote and he estimates the Valus of such lands at 50 to 60 rupees per bigha: he also says that the irteome from the rent paying lands is large enough to leave a profit of about 1,000 rupees after payment of the patni rent. The witness was not cross-examined about these statements but he is not a man on whom much reliance can be placed and it is obvious that if his statements as to the area of the nij jote lands and the gross profits from the jamai lands are correct, the property is worth at least double the value mentioned by the petitioner himself in 1918. On the other hand, it is an admitted faot that the selami paid at the creation of the patni was Rs. 4,000 and it is not unreasonable to find in that some indication of the value of the patni to a purchaser, while the fact that the landlord has had to sue for his rent more than once suggests that the margin of profit is not very large. There is also the fact that one Hem Chandra Santa, described by the petitioner's agent as a well-known physician of the town, (Miduapur), bid at the sale but would not go beyond the appellant's offer ; as the property is only eight miles from the town, this fact is against the petitioner's contention that the value of the property is as much as 10,000 rupees. This branch of the enquiry was conducted in rather a slovenly way, but I think the conclusion must be that the petitioner has failed to prove the true value of the patni to be much, if at all, in excess of the sum paid by appellant.

11. Granted, however, that the valuation of the tenure at 4,000 rupees was an under-state-ment, there is nothing to show that such understatement was the cause of an inadequate price being offered. In some circumstances a connection of cause and effect may be presumed, but such circumstances have not been proved by the petitioner.

12. There remains for consideration the publication of the writ of attachment aijd the sale of proclamation. The learned Judge says in his jndgment that he finds that 'there was material irregularity in publishing and conducting the sale,' but the remainder of his brief judgment shows that he came- to no finding about the publication of the writ and the proclamation. On the one hand, evidence is given by witnesses whose names appear in the return, to the effect that they saw the publication of the processes : there are some slight discrepancies in their statements, but none of such a nature as to cast discredit on the witnesses: while, on the other hand, there is only negative testimoney of an unconvincing character. I think, therefore, that the decree-holder's evidence should be accepted.

13. My conclusion is that the petitioner was duly apprised of the date fixed for the settling of details of the proclamation, and that by his failure to attend without explanation, he has debarred himself from urging successfully that the value entered was inadequate; that the value is not proved to be inadequate, and that, even if it be assumed to be inadequate, such inadequacy is not proved to be a cause of the price bid being inadequate, and that the sale proclamation and writ of attachment were duly served.

14. I think, therefore, that the appeal should be allowed and the judgment of the lower Court setting aside the sale reversed, and orders passed directing that the sale be confirmed, with costs in all Courts to be paid by the judgment-debtor Nagendra, hearing-fee in this Court being assessed at five gold mohurs.

Mukerji, J.

15. I agree.


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