SATYA CHARAN DUTTA Vs. SHYAM SUNDAR NANDI

JUDGEMENT

(1.) THE judgment-debtor put in an application according to the provisions of section 47 read with Order 21 Rule 90 of the Code of civil Procedure for setting aside the sale held on 29-3-1974 on the ground of material irregularity and fraud in publishing and conducting sale. His case is that the decree-holder opposite party no. 1 obtained a decree against him. In execution of that decree, his alleged one fourth undivided share in the family dwelling house at 29, Creek Lane, calcutta, was put up to sale. He suffered substantial injury thereby. The application was opposed by the decree-holder as well as by the auction purchaser opposite party. The learned Judge of the City Civil Court disbelieved the petitioner's version and dismissed the case. Hence the appeal.

(2.) MR. S. C. Mitter appearing on behalf of the appellant has contended that the decree holder is guilty of fraud and material irregularity in publishing and conducting the sale. There was a deliberate mis-description of the property. The valuable property located near the Dental College and N. R. S. Hospital was sold for a paltry sum of rs. 26,500/- in auction. His client suffer irreparable injury. The records of the case clearly demonstrate that the decree-holder is guilty of fraud and material irregularity. Hence the Court should set aside the sale. He has referred to the cases reported in A. I. R. 1963 punjab 230 and A. I. R. 1966 Mad. 84 and contended that in view of the decree-holder's aforesaid conduct, the court should set aside the sale suo motu.

(3.) MR. B. C. Dutt, learned advocate on behalf of the auction purchaser o. P. , has contended that there was no material irregularity or fraud. At all events the petitioner did not suffer substantial injury. He has referred to the case in L. R. 20 LA. 176 to support that contention. It has also been contended by him that the Court should not ignore the judgment-debtor's conduct, because he tried his level best to thwart the execution proceeding. He did not raise any objection when the sale proclamation was drawn up. The cases reported in 32 C. W. N. 309, 50 C. W. N. 266, A. I. R. 1964 S. C. 1300, A. I. R. 1971 s. C. 2337, 1976 (1) S. C. C. 712, A. I. R. 1971 Cal. 203 and 76 C. W. N. 368 have also been relied on by him. He has contended that the judgment-debtor was in the know of the entire thing. He put in several applications to delay and obstruct the execution proceeding. In that view of the matter, the Court should unhesitatingly hold that the judgment-debtor did not suffer any substantial injury.