KAMALA BALA MUSTAPHY Vs. DEBABRATA GHOSH

JUDGEMENT

(1.) The above application has been taken out for delay, if any, be condoned, and recalling of an order dated 28th February, 2005 passed by me on G.A. No. 1374 of 2000 arising out of Suit No. 222 of 1958. By my above order I with detailed reasons and judgment confirmed sale in favour of purchaser at price of Rs. nearly 12 lacs. The offer of the purchaser was accepted by the Court on earlier occasion at a sum of Rs. 9 lacs. The earlier application was heard in presence of the parties. The present applicant on 25th of February, 2005 appeared before this Court and made submission and the matter was again fixed on 28th of February for further hearing. On 28th of February, 2005 the applicant did not appear and the impugned order was passed by me considering the submission of the learned Counsel of all the parties. The present application has been taken out on two grounds, firstly the applicant was incapacitated from coming to Court for illness on 28th of February, 2005 to make submission and second ground is that the property has been sold and confirmation thereof has been made at a throwaway price of Rs. 12,71,431/-.

(2.) Mr. Sarkar learned Senior Advocate appearing in support of this application has drawn my attention to the various documents namely Doctor's certificate dated 11th March, 2005 and prescription that the applicant was unwell. It appears from the certificate that the Doctor advised him to take complete bed rest since 25th February, 2005. He also annexes prescription of the Doctor concerned in support of the certificate. According to Mr. Sarkar the aforesaid ground is sufficient cause for which the petitioner was prevented from appearing in this matter on 28th of February, 2005, so on that ground alone my earlier order should be recalled and the matter be heard afresh.

(3.) On merit he has made submission showing that the sale was not conducted in accordance with the provisions of Order 21, Rule 66 of the Civil Procedure Code (CPC) and also it has been sold at grossly undervalued price. According to him even after confirmation of the sale this Court is empowered to set aside the same if it is found the sale is vitiated with fraud and with material irregularities. It is the duty of the Court to examine that valuation of the property is done properly. In support of his submission he has relied on the following decisions. AIR 1973 Mad 107, AIR 1973 SC 2593, AIR 1987 SC 2081, AIR 2000 SC 3642.