NAKUL CHANDRA DUTTA Vs. AJIT KUMAR CHAKRABARTI

JUDGEMENT

(1.) This Rule was issued at the instance of the petitioner decree holder and its directed against an appellate order passed in Misc. Appeal No. 62 of 1979 reversing the order of the trial court in Misc. Case No. 48 of 1976 arising out of an application under Order 21 Rule 90 of the Code of Civil Procedure. The application under Order 21 Rule 90 of the Code was filed by the opposite party no. 1 on 22.9.1976 for setting aside a sale held on 1.7.68.

(2.) The facts leading to the filing of the application under Order 21 Rule 90 of the Code of Civil Procedure may be briefly stated thus.

(3.) One Gopal Chandra Chakraborty was the owner of 3.1/2 cottas of land with a three storeyed building standing thereon, being premises no.372/4, Russa Road South, subsequently renumbered as 3, Deshapran Sashmal Road. Gopal Chandra obtained a loan of Rs.36,000/- from Metropolitan Insurance Company Limited. The decree holder Nakul Chandra Dutta instituted Suit No. 459 of 1952 against opposite party No.3 Panchanan Chakraborty for recovery of loan of Rs.6,000/- with interest in the original side of this court and obtained a decree for Rs.9,000/- inclusive of interest. Gopal Chandra, father of Panchanan was impleaded as a co-defendant in this suit and as such was a co-judgment debtor. Metropolitan Insurance Company Limited instituted Title Suit No. 79 of 1953 in the 3rd Court of the learned Subordinate Judge at Alipore for recovery of the principal sum of Rs.30,000/- together with interest and obtained a decree on 7.5.53 for Rs.39,165.34. Gopal Chandra Chakrabarty died in 1955 leaving behind his widow and 3 sons, opposite parties 1, 2 and 3. In 1960 Nakul Chandra got the decree passed by the High Court in his favour transferred to the 3rd Court of the learned Subordinate Judge, Alipore for execution and Money Execution Case No. 38 of 1960 was started. Life Insurance Corporation which had taken over the business of Metropolitan Insurance Company after nationalization, started Title Execution Case No. 23 of 1960 in the same 3rd Court of the learned Subordinate Judge. In this Execution Case No. 23 of 1960, the widow and sons of Gopal Chakraborty deposited Rs.30,000/-. In the execution case at the instance of Nakul Chandra Dutta, the property namely, no.3, Deshapran Sashmal Road was attached and put to sale by auction. In the ale that followed Nakul Chandra Dutta, the decree holder purchased the property for Rs.9,000/- and odd on 1.7.68. The widow of Gopal Chandra acting through Panchanan filed an application for setting aside the same on 29.7.1968 claiming that the property was worth Rs.1,50,000/-. The application, however, was dismissed for default on 19.8.72. The sale in favour of Nakul was confirmed on 4.12.72. It is significant, however, that such confirmation was obtained only when the opposite party no.1 Ajit Kumar Chakraborty (who had filed the application under Order 21 Rule 90 of the Code) one of the sons of Gopal Chandra had started Title Suit No.71 of 1972 for partition of the self-same property, namely, no.3, Deshapran Sashmal Road. This suit was contested by his mother and his brother Panchanan who in their defence denied plaintiff's title but did not disclose the auction sale already held. The suit was eventually decreed in a preliminary form on 20.2.74. The appeal filed by the mother and Panchanan against the preliminary decree for partition being Title Appeal No. 503 of 1974 was dismissed on 13.2.75. Though the sale was confirmed in 1972, the auction purchaser took no steps for taking delivery of possession until 1974. He took out the sale certificate in March, 1974 and applied for delivery of possession under Or. 21 rule 95 on 20.6.74. Faked possession was taken when opposite parties 2 and 3 along with their mother continued to remain in possession and shortly thereafter when Panchanan's appeal against the partition decree failed in July 1976 he purchased the disputed property from the decree holder Nakul for a sum of Rs.25,000/-. The opposite party no. 1 Ajit Kumar Chakraborty thereupon filed the application under Order 21 Rule 90 of the Code for setting aside the auction sale held on 1.7.68 which was registered as Misc. Case No.48 of 1976. In this application Ajit claimed that he had not been duly served with the processes in the execution case, that he had no knowledge of the execution case or of the sale that took place and that he came to know of the sale long thereafter in August 1976, when he as informed by a tenant of the disputed premises that Nakul had sold it to Panchanan and that the tenant had been asked to attorn and that the property was sold at a shockingly low value. The application under Order 21 Rule 90 of the Code was contested by Nakul and Panchanan.