FIRM BALAK RAM MEHAR CHAND Vs. LACHMAN DAS

JUDGEMENT

(1.) The facts on which the decision of this appeal must rest lie within a narrow compass. Lachhman Dass, decree-holder, having obtained a decree for a sum of Rs. 7813/- with costs on 19-5-1956 against the firm Balak Ram Mehr Chand, bought the building known as Bombay Hotel situated on Jullundur Road, Hoshiarpur, in auction sale for a sum of Rs. 10,125/- on 8th of November, 1956, having obtained the permission of the Court to bid at the auction. The judgment-debtor raised objections to the auction sale on ground of material irregularity under O. 21 R. 90 of the Civil Procedure Code, and these having been rejected by the learned Senior Subordinate Judge, Hoshiarpur, has now come in appeal to this Court.

(2.) The principal objection raised by the appellant in the executing Court related on the announcement made by the Court auctioneer to the effect that the property under auction was the subject-matter of litigation in the Court of Shri Suchet Singh Kalha, Subordinate Judge, First Class, Hoshiarpur, in pursuance of a Parwana issued by it on 7th of November 1956 giving intimation that a suit has been filed by Subhash Chand etc., against Lachhman Dass regarding the suit-property. The announcement was made by the auctioneer in accordance with the directions received from the Court of Shri Kalha. It cannot be controverted that the litigation with regard to property put up for sale was a material fact to be included in the sale proclamation under O. 21, R. 66, Civil Procedure Code, and it was as much the business of the judgment-debtor as that of the decree- holder to bring it to the notice of the executing Court. This was not done. It is significant to mention that the suit in the Court of Shri Suchet Singh Kalha was brought by the grandsons of the judgment-debtor with regard to the property which had been put up for auction and though it is not clear at whose instance the notice was issued from this Court to the Court auctioneer, it was rightly brought as a material fact to the notice of the bidders. Indeed, if this fact had not been brought to the notice of the bidders at that time, an objection could be raised on the ground that a material fact had not been disclosed an objection which, in my opinion, would have been certainly upheld. It has been contended by the learned counsel for the appellant that the intimation about the pending suit had a depressing effect on the proposed buyers who were reluctant to buy property which was the subject matter of litigation. That may be so but for this result the decree-holder cannot be blamed. The judgment-debtor could not have been oblivious of the suit which had been brought by his grandsons and as alleged by the decree-holder it is not improbable that he himself was its sponsor. It is to be observed that in the reply filed by the judgment-debtor on 5th of October, 1956, to the application filed by the decree-holder under O. 21, R. 66, he had raised a variety of objection sand the decree-holder though not admitting their validity had agreed to the incorporation of the judgment- debtor's suggestions in the proposed proclamation. About this time the suit was also file in the Court to Shri Suchet Singh Kalha. The intimation sent with regard to this suit by Shri Suchet Singh Kalha cannot, by any stretch of imagination, he regarded as a circumstance vitiating the sale. It was held in Venkataraghavamma v. Singarayya Setty, AIR 1932 Mad 119, by a Division Bench of the Madras High Court that "where the Court thinks fit that it is material for the intending buyers to know that the property to be sold is under litigation and directs the amin to give them that information is entirely justified in doing so". Reliance was placed by the counsel for the appellant on an observation made in Venkataratnam v. Ranganayakamma, ILR 41 Mad 985: (AIR 1919 Mad 738)(FB), on the undesirability of issuing such warnings. The Division Bench of the Madras High Court in AIR 1932 Mad 119, dissented from the view taken earlier in the Madras authority. The learned counsel for the appellant ha snot questioned the necessity of convey in the intimation regarding the pending suit: all that has been objected is the mode in which this intimation was given. I am unable to accede to this argument of the learned counsel.

(3.) The learned counsel for the appellant has not been able to show that any substantial loss resulted from the 'irregularity' in the sale in favour of the decree-holder. In fact the appellant himself as O. W. 7 has stated that the suit- property had been fetching a monthly rent of Rs. 50/- On any method of computation the market value of a property fetching that rent cannot be anywhere near Rs. 40,000/- as asserted by him. No evidence has been adduced with regard to the loss suffered by the judgment-debtor nor has any contention been raised before me by the learned counsel on this score. Under the proviso to O. 21, R. 90, of Civil Procedure Code, "no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud". Apart from the bare assertion made by a few witnesses that people became reluctant to bid, there is no other evidence to show that any loss was suffered. There is, thus, no reason at all to set aside the sale under the provisions of O. 21, R. 90.