NALINI KANTA LASKAR Vs. SATISH CHANDRA RANA

JUDGEMENT

(1.) This is an application by one of the judgment-debtors for setting aside the sale of premises No. 38, Kali Krishna Tagore Street, Calcutta held on 25th of March 1970 by the Sheriff of this Court in execution of a decree.

(2.) The said premises No. 38, Kali Krishna Tagore Street appears to be heavily encumbered. It appears that there are 4 mortgages on the said property and the said mortgages have all been mentioned in the Sale proclamation. One of the mortgagees. United Bank of India Ltd has filed a suit in this Court for enforcement of the mortgage and in the said suit a Receiver has been appointed over the said premises No. 38, Kali Krishna Tagore Street. Calcutta and the Receiver has been and is still realising the rents, issues and profits of the said premises The Receiver was there when the plaintiff decree-holder took steps for execution of this decree and the plaintiff decree-holder after obtaining necessary leave of this Court to proceed in execution against the property in the hands of the Receiver made an application in execution on the 23rd of February, 1966 on a tabular statement for attachment and sale of the right, title and interest of the petitioner and also of the defendant No. 1 En premises No. 38. Kali Krishna Tagore Street, Calcutta for realisation of the decretal amount. The decree in favour of the plaintiff was for Rs. 11,500/- with interest on judgment and costs. On the said application in execution of the decree-holder for attachment and sale of premises No, 38, Kali Krishna Tagore Street Calcutta, S. K. Mukherjea, J., made an order oa the 16th of November 1967 directing a writ of attachment to be issued in respect of the said premises No. 38, Kali Krishna Tagore Street snd the learned Judge further directed that the decree-holder would be at liberty to apply for sale of the said property after giving necessary notice to the Official Receiver before sale. An application for sale was made on the 21st of May, 1968 on notice to the Official Receiver and R. M. Datta. J., made an order on the said application on the 24th of July, 1969 directing the Sheriff to sell in execution of the said decree the right, title and interest of the petitioner as the sole proprietor of the business of Satish Chandra Rana and Sarat Chandra Rana in premises No. 38, Kali Krishna Tagore Street, Calcutta by public auction. The applicant and United Bank of India Ltd. amongst others were parties to the said application and the order was made in their presence on contest. Pursuant to the said order for sale made by Datta, J., the sale-proclamation had been settled on notice to the judgment-debtors and the petitioner had in lact participated at the sale reference. The property was put up for sale subject to encumbrances mentioned in the sale proclamation and was sold for a sum of Rs. 18,000/-. The petitioner in the present application seeks to set aside the said sale.

(3.) It appears that at the initial stage of the proceeding when this application was moved, there was no prayer in the petition for the setting aside of the sale and notice of this application had been served only on one of the purchasers though there were 6 joint purchasers of the property. Subsequently, however, notice of this application has been given to all the purchasers and the prayer for the setting aside of the sale has also been included in the petition. The principal ground on the basis of which the petitioner has made this application for setting aside the sale is that there has been a material irregularity in the conduct of the sale as the provisions contained in Order 21, Rule 52 of the Code of Civil Procedure have not been complied with, Order 21, Rule 52 lays down--