DASURAM MIRZAMAL Vs. BALCHAND SURAN

JUDGEMENT

(1.) THIS appeal is directed "against an order of the learned Subordinate Judge passed on 18 -5 -1064 whereby he set aside a sale under Order 21, Rule 90, Code of Civil Procedure, holding that the judgment -debtor suffered great loss and substantial -injury," due to material irregularity in proclaiming the attachment of the property and in proclaiming the sale of the same.

(2.) THE decree -holder who was the auction purchaser is the Appellant before us. The Respondent -judgment -debtor examined six witnesses before the Court below including himself by commission. The decree -holder examined eight witnesses on his behalf. The learned Subordinate Judge held that the attachment was irregular and invalid as no copy of the attachment was served in the Court house and in the office of the Collector. He further held that there was material irregularity in not publishing the sale by beat of drum or any such customary manner and for not serving any copy in the Court house. - He also held that there was non -compliance of the provisions of Order 21, Rule 68, Code of Civil Procedure in holding the sale on 6th April 1959 within thirty days of 10th March, 1959, the date of affixing the copy of the sale proclamation on the Court house at Mangaldai, although the sale was ordered by the Subordinate Judge at Gauhati. The learned Subordinate Judge, after noting the above as material irregularities, dealt with the question whether any substantial injury was caused to the judgment -debtor on account of the said sale and held in his favour. The facts briefly are that the decree -holder had a decree against the judgment -debtor for a sum of Rs. 41,000 and odd, in execution of which he prayed for sale of the judgment -debtor's immovable property situated at Kharupatia in Mangaldai sub -division. The Subordinate Judge at Gauhati, who passed the sale order, entrusted the Munsiff at Mangaldai for conducting the sale. The judgment -debtor was served with the writ of attachment as well as the notice for settlement of terms of sale proclamation, together with a copy of the proclamation of sale, as is clear from his endorsements in his own hand -vide Exts. A(1), 3.(1) and C(1). The judgment -debtor for the first time appeared in Court on 7 -9 -1957 praying for stay of execution till the disposal of his appeal in the Supreme Court against the decree. He is therefore, in the know of the execution proceedings and was represented by a lawyer in the same.

(3.) ON the questions of law raised in this appeal, it is necessary to see whether there was any substantial injury which resulted from the sale in question to the judgment debtor on account of any material irregularity. At this stage, we may read Order 21, Rule 90, Code of Civil Procedure as amended in Assam: