JYOTISH CHANDRA RAKHIT Vs. PARBATI BALA

JUDGEMENT

(1.) This rule has been obtained against the appellate order dismissing the appeal filed by the decree-holder against an order passed by the learned Subordinate Judge, First Court, Alipore allowing an application under Order 21, Rule 90 of the C. P. C. setting aside the sale in execution of the decree. This decree arises out of a suit for partition and it appears that the title of the parties was declared in eight annas share in respect of the suit properties. The value of the portion allotted by the pleader commissioner to the judgment-debtor, the opposite party before me under the decree is Rs. 8,392/-. It appears that the decree-holder started a title execution case No. 22 of 1970 in respect of the said decree for getting possession of his allotment as also for realisation of the costs of the suit which, I am told, amounts to Rs. 700/-. In this case it appears that the sale proclamation was served on the judgment-debtor on 29-4-1971 and after the sale proclamation was settled which it appears, was done in absence of the judgment-debtor, the sale was fixed on 8-9-1971 at 10.30 a.m. On that very day, the decree-holder applied for permission to bid which was granted. In the sale proclamation the price of the property was given by the decree-holder as Rs. 700/-. As no objection was raised on behalf of the judgment-debtor, this price appears to have been accepted by the court in approving the sale proclamation. The property was sold on the date fixed, that is, on 8-9-1971 at Rs. 2,000/-and was purchased by the decree-holder. Long thereafter, on 11-12-1972 the judgment-debtor filed an application for setting aside the sale. The application came up for hearing on contest before the learned Judge who held, inter alia, that the sale proclamation was served. Nonetheless the learned Subordinate Judge set aside the sale on the ground that there was fraud on court on the part of the decree-holder which vitiated the entire proceeding. Accordingly, the impugned sale was set aside. This judgment was affirmed in appeal and the present Rule as already stated is against this decision.

(2.) Mr. Banerjee, learned advocate appearing for the decree-holder petitioner, has submitted firstly that the opposite party is estopped from challenging the sale as she did not appear when the sale proclamation was approved by the court as she was aware of the proceeding. It was secondly submitted that the application was hopelessly barred by limitation In that the requisite time for filing objection to the sale had long passed when the application for setting aside the sale was made. It was next submitted that under the Calcutta Amendment to Rule 66 of Order 21 there was no obligation on the part of the court to give its own estimate of price of the property. Accordingly it could not be said that there was any fraud on the part of the decree-holder in the sale of the property. These contentions have been disputed by Mr. Sur who is appearing on behalf of the judgment-debtor. The Privy Council in Maru-danayagam Pillai v. Manickavasakam Chettiar, 49 Cal WN 292 : (AIR 1945 PC 67) held that in drawing up a sale proclama-tion the court is not to act blindly on information supplied by the parties but is under a duty to check that information as far as possible in order that there may be, so far as possible, a fair and accurate statement of the particulars required, among them being any incumbrance to which the property is liable. The court further held that when material is readily available to check the information, it must be availed of and failure in this respect is carelessness of which the Court cannot be acquitted. The court further held that when a sale takes place at a serious under-value occasioned by failure on the part of the Court and of the decree-holder to carry out the obligations stated above, the case falls within the language of Order 21, Rule 90 and the sale must be set aside, when the judgment-debtor has suffered injury thereby, although the decree-holder may not have been guilty of fraud and however dilatory the judgment-debtor may have been, provided there has been nothing on his part to constitute waiver. When the decree-holder, knowing the real facts, puts a low valuation, he is guilty of fraud and cannot take advantage of it by retaining the sale, whatever the conduct of the judgment-debtor may be. This judgment came up for consideration in Majibar Rahman Molla v. Rahu Bux Dhali, where it was held that mere understatement in the valuation of sale proclamation does not amount to such fraudulent concealment as would bring the sale within the scope of Section 18 of the Lim. Act. In Bibhuti Bhusan Dey v. Bankim Chandra Ghosh, the court held that in view of the amendment to Sub-rule (2) of Rule 66 of Order 21, it is not obligatory on the executing court to determine' the value of the property. These cases have been relied upon by Mr. Banerjee in support of his contention that in view of the Calcutta amendment to the Rule the Privy Council decision cited above has no application and court is under no obligation to put its own valuation. Mr. Sur. on the other hand, referred to the decision in Prabodh Chandra Mukherjee v. Pashu-pati Mukherjee, (1967) 71 Cal WN 649 in which it has held that when the decree-holder puts in a gross under-valuation to the property and there was blind acceptance thereof by the court, such conduct on the part of the decree-holder amounted to fraud on the court as distinguished from fraud on the party and such blind acceptance by the court of so shockingly low a value amounted to gross carelessness on its part. It was further held that limitation cannot show its head in a matter if the matter be looked at from the stand point of fraud on the court or from the court's inexcusable carelessness. In an earlier judgment in Manmatha Chakraborty v. Sachindra Kumar Chakra-borty, it was held that it would be a case where the decreeholder would be guilty of deliberately putting a shockingly low valuation for the disputed property in the proclamation for sale and the sale amounts to fraud on court and would vitiate the sale apart from the question of any other material irregularity in publishing or conducting the sale.

(3.) In the facts of the present case, we will have to make decision on the authorities, we have indicated above. There is no dispute that the valuation of the property found in the suit itself in the same Court, the decree of which was sought to be executed, was more than ten times the value which was put on the sale proclamation by the decree-holder. These facts were before the court and before approving the sale proclamation it was incumbent on the court to consider the records of the connected proceeding before it to satisfy if there is proper valuation for execution of the decree for costs against the other co-sharer in the partition suit decreed by it. The court in approving the sale proclamation acted most carelessly and such carelessness is not protected by the provision of Order 21, Rule 66 with the Calcutta Amendment. There are, therefore, two grounds for which the sale cannot be sustained, namely, fraud of the decree-holder on court and the carelessness of the court in approving the sale proclamation in the state of affairs indicated above.