KISHUNJEE RAI Vs. JAINARAIN PRASAD THAKUR

JUDGEMENT

(1.) THIS application has been filed by the judgment-debtors and it arises out of an application filed by them under Order 21, Rule 90, Section 47 and Section 151 of the Code of Civil Procedure for setting aside an auction sale held on the 16th September 1965 in Execution Case No. 134/18 of 1963. The Special Execution Munsif had allowed the application and the sale was set aside. On appeal, the learned Additional Subordinate Judge has allowed it and the miscellaneous case filed by the judgment-debtors stands dismissed. It appears that a decree had been passed on 21st February 1963 which was under execution. A compromise was entered into in that case on 28th July 1965 on certain terms one of which will be referred to later on. On the allegation that these terms were not adhered to, the disputed properties were put on sale and were sold on 16th September 1965, as stated above. The present application was filed on 10th February 1966, on the allegation that the ludg-ment-debtors had obtained knowledge of the sale on 8th February 1966. The learned counsel for the petitioners has contended that the valuation given by the decree-holders in the original sale proclamation was grossly inadequate and in the notice given to the judgment-debtors under Order 21, Rule 66 (2) of the Code of Civil Procedure, the encumbrances were not mentioned. Hence it is contended that the sale was bad for non-compliance of that provision of the Code of Civil Procedure. According to the learned counsel, the sale was for an inadequate price and, therefore, an inference of fraud by the decree-holders must follow as a matter of law. In my opinion, these contentions are not at all valid. Apparently, the only point which had been urged in the court of appeal below is that, according to the terms of the compromise, there was an agreement between the parties that the decree-holders would inform the judgment-debtors of the proposed auction sale. The judgment-debtors made out a case that as they were not informed by the decree-holders, the sale was not a valid one. The court of appeal below has gone into this matter in great detail and has concluded that on the terms of the compromise petition there was no obligation on the decree-holders to inform the judgment-debtors that the decree-holders were going to take steps for the auction sale of the properties, for non-compliance of the terms of the compromise. The learned counsel for the petitioners has referred to Order 21, Rule 66 (2) of the Code of Civil Procedure and has argued that the notice to the judgment-debtors had to include all the necessary informations required under Order 21, Rule 66 (2) of the Code of Civil Procedure, including the encumbrances on the property. For this purpose learned counsel has relied upon the case of Marudanayagam Pillai v. Manickavasakam Chettiar, AIR 1945 PC 67. I do not think that this contention is valid at all. According to Order 21, Rule 66 (2), the sale proclamation had to contain certain informations required under the law. THIS rule cannot be interpreted to mean that the notice given to the judgment-debtors for drawing up the sale proclamation must contain the details mentioned under Rule 66 (2) of Order 21. The learned counsel for the petitioners has not been able to show how the valuation given in the sale proclamation was grossly inadequate from which an inference of fraud would follow. As a matter of fact, these points were abandoned in the court of appeal below. In paragraph 8 of the judgment it is mentioned that the learned Munsif was wrong in holding that the sale was irregular or illegal for not showing the encumbrances in the writ of attachment, or that it was necessary for the appellant to have obtained the permission of the Court to auction purchase the property and that these points were not agitated by the respondents in that court. The court of appeal below has also mentioned an important term in the compromise between the parties to the effect that on an auction sale the judgment-debtors would not challenge the sale on the ground of inadequacy of the sale amount. THIS is also a relevant point on the facts of the case and, therefore, the other decisions relied upon by the learned counsel for the petitioners, namely, AIR 1945 Pat. 76, AIR 1956 Cal 59 and AIR 1966 Mad 84 also are not relevant.

(2.) IN the result, the civil revision must fail and it is dismissed with costs. Order of interim stay, if any, is vacated.