PRABODH CHANDRA MUKHERJEE Vs. PASUPATI MUKHERJEE

JUDGEMENT

(1.) This is a judgment-debtor's application under Section 115 of the Procedure Code. The judgment-debtor is Prabodh Chandra Mukherjee.

(2.) On February 3, 1962, he moved a learned Subordinate Judge qua executing, under Order 21, Rule 90 ibid. for setting aside a sale held on August 13, 1958, of some 13 cottahs of land situate in Paschim Barisa within the jurisdiction of Behala police-station in the south-western suburbs of the town of Calcutta. The learned Judge did set aside the sale, by his order dated September 11, 1963, on the basis of three broad findings come to by him. First : limitation (30 days from the date of the sale : article 166 of the Limitation Act 9 of 1908) could not stand between the petitioning judgment-debtor and his success, because he was kept back from the knowledge of the sale till January 23, 1962, by fraud practised on him. Second : material irregularity and fraud in publishing and conducting the sale had vitiated it. Third : the land the value of which would be Rs.6,000 in 1958 was valued at Rs.300 in the sale proclamation and sold for Rs.450 which had caused substantial injury to the petitioner.

(3.) Binodini Dassi, a purchaser from an auction-purchaser in the aforesaid sale of August 13, 1958, had alone resisted the judgment-debtor's petition under Order 21, Rule 90. She carried the matter on appeal. A learned Additional District Judge, who had heard the appeal, held just the opposite, and allowed the appeal, by his order dated February 12, 1964.