SISIR KUMAR MUKHERJEE Vs. KANYALAL JHEWAR

JUDGEMENT

(1.) F.M. As Nos. 255 and 264 of 1964. The above two appeals arise out of the same proceeding under Order 21 Rule 90 of the Code of Civil Procedure for setting aside an execution sale. First Miscellaneous Appeal No. 255 of 1964 is by the decree-holders and the other First Miscellaneous Appeal, namely, No. 264 of 1964, is by the auction-purchaser.

(2.) The property in question, namely, Premises Nos. 1 and 2 (now No. 1) Nityadhan Mukherjee Road, Howrah, belonged to the Sils in superior interest, under whom respondent No. 1 and/or his predecessor was the lessee under a lease, dated October 6, 1920, for a period of fifty years, expiring in August 16, 1970. The appellants were sub-lessees in respect of the said property. In or about the year 1957, the appellants instituted a suit (title Suit No. 104 of 1957 of the First Court of the Subordinate Judge, Howrah) for specific performance of a contract of renewal of the sub-lease. That Suit was decreed on July 6, 1960, with costs. The said decree, including the decree for costs, was put into execution in Title Execution Case No. 21 of 1960 on August 20, 1960. In the said execution, there was a two-fold prayer: first, for execution and registration of a document of lease or sub-lease in terms of the above decree and, secondly, for realization of the decretal costs of Rs.1,731.69 P. by attachment and sale of the judgment-debtor-lessor's interest. The judgment-debtor's objection under Section 47 of the Code of Civil Procedure, filed on November 4, 1960 (Misc. Case No.51 of 1961), was dismissed on January 25, 1961, and, thereafter, the lease (sub-lease) was executed and registered between March 3, 1961, and April 17, 1961. This was followed by the decree-holders' prayer for realization of the above decretal costs by attachment and sale of the lessor's interest, as stated hereinbefore. In this proceeding the sale was actually held on September 11, 1961, and Sailendra Nath Ganguly (Respondent No. 2 in F.M.A. 255 of 1964 a d Appellant in F.M.A. 264 of 1964) became the auction-purchaser for a sum of Rs.9,999/-. Delivery of possession was purported to have been taken by the auction-purchaser on December 1, 1961, after obtaining the requisite sale certificate. On December 13, 1961, the judgment-debtor Kanyalal Jhawar applied for setting aside the said sale under Order 21 Rule 90 of the Code of Civil Procedure in Misc. Case No. 65 of 1961, and that the sale processes and relative execution processes had all been suppressed. This application was eventually allowed by the learned trial Judge by his order, dated February 21, 1964, and against the said order, the present two appeals have been filed by the decree-holders and the auction-purchaser respectively.

(3.) The judgment-debtor's prayer for setting aside the sale was opposed principally upon three grounds. First, that there was no material irregularity or fraud in the sale proceedings; that the property was not sold at an undervalue and, thirdly, that the application for setting aside the sale was time barred. All the above objections, however, were overruled by the learned Subordinate Judge and the sale was set aside, as stated above.