SATYANARAYAN BARI Vs. PRATIVA BANERJEE

JUDGEMENT

(1.) The connected misc. appeals are directed from the judgment and Order No. 261, dated 12.9.91 passed by the Chief Judge, City Civil Court, Calcutta in Misc. Case No. 59 of 72 arising out of a petition under order 21, Rule 90, read with section 151 of the Code of Civil Procedure filed by the judgment debtor Bhudhar Chandra Banerjee in Money Execution Case No. 17 of 71 and subsequently it was proceeded with by his legal heirs and representatives on his demise. The petitioner in the connected petition before the trial Court has prayed for setting aside the auction sale of the premises in question in execution of the said decree passed in Money suit No. 7 of 66 in Money Execution Case No. 17 of 71 initiated by the decree holder thereof.

(2.) It is necessary to give a brief backgound of the narration of entire facts giving rise to the instant proceeding. As early as on 3.1.66 one J. L. Bothra, the respondent No. 7, instituted Money suit No. 7 of 66 against Bhudhar Chandra Banerjee for recovery of money lent on account of advance together with an interest calculated about Rs. 4,000/-. The said decree was passed on 20.9.68 and as a follow up to the same Money Execution Case No. 17 of 71 was initiated by the decree holder. In the said execution proceeding an attachment of property was made on 4.3.71 which was followed up by filing of an application for sale under Order 21, Rule 66 of the Code of Civil Procedure and the same was allowed. The concered court issued sale proclamation sometime on 18.6.71 as a result of which premises No. 4B, Jackson Lane, Calcutta was afflicted with an order dated 20.7.71 because of the issuance of a writ of Attachment. Thereupon an insertion was caused to be circulated in the daily issue of Statesman on 5.8.71. On the same being publicised, Bhudhar Banerjee appeared in the Court and filed a petition for a month's time to pay the decreetal due by 13.9.71. As decreetal dues were not paid, therefore the sale was fixed on 22.10.71 by the Court. The Court did not accept the highest bid at Rs. 4,001/- and it was again re-scheduled on 26.10.71. The same was adjourned on the prayer of the judgment debtor who ultimately failed to pay the decreetal dues and auction was held on 17.11.71. Then Bhudhar Chandra Banerjee filed an application under Order 21, Rule 89 of the Code of Civil Procedure for not confirming the aforesaid auction sale and the application was directed to be put up on 17.12.71. As nobody appeared on 17.12.71 the auction was confirmed. Thereafter the judgment debtor after the expiry of the prescribed period made an application under Order 21, Rule 90 of the Code of Civil Procedure from which the Misc. Case arises. The same was followed up by filing of a petition under section 18 of the Limitation Act for condonation of delay in filing the aforesaid petition under Order 21, Rule 90 of the Code of Civil Procedure. The application out of which the connected Misc. case arises has been sought to be built up on multifarious grounds as reflected from the connected petition. The pleas which have been taken in the petition are to the effect that no notice has been issued or served on the judgment debtor under Order 21, Rule 22 of the Code of Civil Procedure. The controversy has been raised also on the footing that the decree holder has put the value of the property under exection at Rs. 75,000/- and the same has been sold for Rs. 4,000/- and odd on account of gross irregularity for alleged fraud practised by decree holder in publishing and conducting the sale. As the publication of the sale has not been properly made according to allegations, therefore, price was not given in the exectution petition for which no prospective bidder was attracted. There has been also allegation of non compliance of strict adherence to provisions of the Order 21, Rule 68 of the Code of Civil Procedure and as such publication of sale appearing in the Statesman on 5.8.71 was vitiated which was bordering on irregularity. There has been further allegations about alleged suppression of the process under Order 21, Rule 66 of the Code of Civil Procedure and complaints were made about non-service of the same on the judgment debtor. The said application of the judgment debtor is resisted at the time of trial by three sets of opposite parties. They are namely opposite parties No. 3(a) to 3(c) and 3(e), opposite parties No. 3(f) to 3(g) and opposite party No. 4 who has been subsequently added as a party in the said proceeding. Their case is that of total denial and it has also been contended that the connected Misc. Case is absolutely misconceived being barred by laws of limitation, principles of res judicata, estoppel, waiver and acquiescence. The allegations were denied by assertion that in spite of ample opportunity being obtained by the judgment debtor for avoiding auction sale, there has been express waiver on the part of the judgment debtor regarding the issue of sevice of further proclamation of sale and judgment debtor cannot now be allowed to take advantage either of his own wrong resulting in a situation created by him. Even, the allegations of fraud were denied. The same is reflected by rejoinder in the opposition filed by the contesting respondents/opposite parties in the mise. case. It appears that during the pendency of the connected misc. case the judgment debtor died on 21.1.80 leaving behind him his successors who are substituted and brought on record in his place by the Court's order dated 2.2.80 who are continuing with the instant proceeding. The auction purchaser of the premises in question having sold out the said property to the opposite party No. 4 on 24.1.72 who is alleged to have purchased the same in the benami of Mannalal Bari since deceased. On the latter's demise on a challenge thrown by his legal representatives to the title of said opposite party No. 4 who filed the suit before the Original Side of the High Court at Calcutta in Suit No. 295 of 79 for a declaration that he is the real owner. The said suit was decreed in favour of the aforesaid party where parties to the misc. case were figuring also as parties. By a subsequent order dated 6.10.88 the trial court has allowed the asid opposite party in the connected proceedings.

(3.) Misc. Appeal No. 1045 of 1992 was preferred by Satyanarayan Bari and others who are original lessors in respect of the property in dispute and Molla Sirazul Haque, the lessee, who was added as an opposite party in the connected proceeding under Order 21, Rule 90, read with section 151 of the Code of Civil Procedure against the common Order No. 261, dated 12.9.91 passed by the 1st Bench of the City Civil Court, Calcuttal in Mise. Case No. 59 of 72. Both sets of appellants, namely, the lessor and the lessee wanted to defend the auction purchase and they were aggrieved by the common order under challenge and they ventilated their grievances against the same. The point for consideration at the trial is whether the immovable properties sold in execution of the decree passed in Money Suit No. 7 of 66 is liable to be set aside on the ground inter alia of material irregularity or fraud in publishing or conducting the sale. It is noteworthy to keep it in mind that in F.M.A. No. 1045 of 1993 the judgment debtors/repondents made an application for appointment of Receiver on the ground mentioned in the said application and Molla Sirazul Haque, the appellant in F.M.A. No. 421 of 1993 opposed the prayer for appointment of Receiver on the plea that both the appeals may be disposed of on the point that application for setting aside of the sale was barred by limitation and accordingly instead of hearing of the application for appointment of Receiver the appeals may be taken up for hearing for disposal. However, the appellants namely Satyanarayan Bari and others in F.M.A. No. 1045 of 1992 took up the stand that all the points in the appeal should be decided once for all. However, at the stage of commencement of the hearing the appellants in one of appeals submitted that the other appeal being F.M.A. No. 421 of 1993 is not sustainable as the appellants in the said appeal being the alleged lessees under the judgment debtors have no right to file an appeal against the impugned order. However, that being a separate chapter which cannot come within the purview of the instant appeal as this misc. appeal arises out of a proceeding under Order 21, Rule 90, read with section 151 of the Code of Civil Procedure, the court expresses its doubt as to whether this court at the appeallate stage can travel beyond the purview of the ambit of the scope of appeal which is restricted within the dimension of the controversy covered by the impugned order which is under challenge before these two appeals are set up for hearing. Therefore, this court allowed both sets of appellants as well as the common respondent to argue on the propriety of the order under challenge and to put forward their respective view points so that court may arrive at its inference about the sustainability of the same which is under scrutiny before it.