MAJIBAR RAHMAN MOLLA Vs. RAHU BUX DHALI

JUDGEMENT

(1.) This revisional application is directed against an order of Sri M. L. Chakravarty, Additional District Judge, 24-Parganas, allowing an appeal from an order of the Munsif 2nd Court, Diamond Harbour who allowed an application for setting aside a sale, and directing that the application for setting aside the sale be dismissed. The sale in question was held in the course of a Rent Execution Case No. 1619 of 1947 on 7-4-1948 when the jots in arrears was sold for Rs. 199-1 anna. An application for setting aside the sale under Section 174(3), Bengal Tenancy Act, was filed by three of the judgment-debtors on 10-10-1950. The petitioners alleged that the decree had been obtained collusively by suppressing summons and that all the processes in the execution case had also been suppressed and that they had come to know of the sale from a neighbour Kayem Ali Molla on 4-10-1950 and had then obtained details of the sale from the landlord's sherista and filed application for setting aside the sale shortly thereafter. The application was opposed by one of the auction purchasers Rahu Bux Dhali. The learned Munsif held that the sale proclaimation and other processes including concise statements under Section 163 of the Bengal Tenancy Act had been duly served. He however noted that the valuation put forward in the sale proclamation was Rs. 150 whereas according to him the proper value of the suit land would be Rs. 5000/-. In view of this under-valuation the learned Munsif was inclined to hold on the basis of two Dacca Rulings, namely, the case of -- Tuli Bibi v. Aziz Ahammad', 53 Cal WN 1 DR 159 (A) and -- 'Sundar Bibi v. Bhupal Chandra Roy', 55 Cal WN 3 DR 1 (B), that this was a case where the question of limitation would not arise in spite of the fact that there had been due service of processes, as the petitioners had suffered substantial injury and there was shocking undervaluation in the sale proclamation. The learned Munsif therefore passed the order setting aside the sale. The learned Additional District Judge in appeal reversed the finding, holding that there was distinction between under-valuation which might be shocking to the conscience and fraud by suppression of processes in the execution case including the sale proclamation which tended to keep the judgment-debtors out of knowledge of the proceedings, and that it was only in the latter case that Section 18 of the Limitation Act would apply and that Section 18 of the Limitation Act would have no application merely in a case of under-valuation however shocking it might be. On that view the learned Additional District Judge reversed the order of the learned Munsif and directed that the application for setting aside the sale be dismissed.

(2.) The first point urged on behalf of the appellants petitioners is that the learned Additional District Judge did not go into the evidence as regards proper service or otherwise of the sale proclamation and other processes in the execution case on the ground that no notice had been given by the petitioners (respondents in the Court below) that they would challenge the findings of the lower appellate court as to the due service of the processes, and that this was a mistaken view of the law taken by the learned Additional District Judge and that the appeal should be remanded to him for proper disposal according to law. It is true that the learned Additional District Judge made an observation that the law required that notice must be given by the respondents to the appellants that they would challenge the findings, and for that view the learned District Judge relied on the case -- 'Gopi Nath Das v. Nami Charan Das', and the learned Judge appears to have taken a wrong view of an observation in that ruling. It was observed in that case as follows:

(3.) The next point urged on behalf of the petitioners is that the Dacca Rulings on which the learned Munsif relied are based on a Ruling of the Privy Council in the case of -- "Marudanayagam Pillai v. Manickavasakam Chettiar', AIR 1945 PC 67 (D) and that the effect of this Privy Council Ruling was not considered by the learned Additional District Judge. In the Privy Council case the details of the mortgage subject to which the property was to be sold were erroneously entered in the sale proclamation. The claim under the mortgage was shown in the sale proclamation of Rs. 80000/- whereas it should have been Rs. 67000/-. There was a finding that on account of this error the property had been sold at a relatively lower value. The Privy Council observed as follows,