BASANTA KUMARI GUHA Vs. RAMKANAI SEN PODDAR

JUDGEMENT

(1.) We are invited in this appeal by one of the judgment-debtors to reverse a sale, held in execution of a mortgage-decree on the 26 July 1907. The decree was obtained on the 19th September 1900, against nine judgment-debtors, and the properties directed to be sold, were also nine in number. Of those, the first, second and ninth properties belonged to the judgment-debtors numbered four to seven; the fourth property belonged to all; and the fifth, sixth, seventh and eighth properties belonged exclusively to the petitioner. The sale proclamation, on the basis of which the sale now in controversy took place, is alleged to have been served on the 29 March 1907. It notified that the sale would commence on the 20th May following, for recovery of Rs. 11,041, the judgment-debt due, after allowance had been made for payments by the judgment debtors. The properties were described in detail, in a schedule, and their values were also set out. The sale, however, did not take place on the 20 May; but upon the application of the judgment-debtors and with the consent of the decree-holders, who were paid Rs. 1,000 in part satisfaction of the decree, the sale was adjourned till the 22nd July, to be held on that date without the service of a fresh-sale proclamation. On the 22nd July, the decree-holders obtained leave to bid at the sale. But the judgment-debtors again applied for an adjournment for seven days, in order to enable them to raise money by private sale of the properties, and agreed to take no objection on the ground of illegality or irregularity, if their prayer was granted. The Court, however, refused their application, and adjourned the sale to the 26 July. On that date, the sale actually took place. The first two properties were not sold under circumstances which will be explained later on. The remaining seven properties were all purchased by the decree-holders for the sum of Rs. 10,325. There was only one out side bidder present at the final stage of the safe, and he appears to have offered bids in respect of the first two properties only, for which the decree- holders declined to offer bids. On the 21 August 1907, one of the judgment-debtors, the present appellant, applied to have the sale set aside upon various allegations of fraud, irregularities, and substantial injury. The Subordinate Judge overruled all these objections, and directed the sale to be confirmed. We are invited in this appeal to reverse this order, substantially on three grounds, namely, first, that there Were serious irregularities in the proceedings preliminary to the sale, inasmuch as the value of the properties had been grossly under-stated by the decree-holders in the sale proclamation, and this circumstance had caused serious injury to the judgment-debtors; secondly, that the sale proclamation had not at all been properly served as required by law; and thirdly, that there had been grave irregularities in the conduct of the sale which was interrupted at one stage and subsequently resumed when intending bidders had left the Court premises.

(2.) All these points have been strenuously controverted on behalf of the decree-holder respondents; and it has further been suggested that it is not open to the judgment-debtors to attack the validity of the sale on the ground of any irregularity or illegality, inasmuch as they had waived all possible objection on such grounds, by their application of the 20 May 1907. We shall proceed to examine the validity of these contentions in the order just stated.

(3.) In support of the first contention, it has been argued by the learned Vakil; for the appellant, that in view of the prices offered by the decree-holders, at the execution sale, it is undeniable that the values of the properties had been grossly under-stated, in the sale proclamation; that, as a matter of fact, the prices paid at the execution sale, though higher than the values named, are still very much lower than the real market-values of the disputed properties; that the judgment-debtors have, consequently, suffered substantial injury; and that, on the principle laid down by the Judicial Committee in the case of Saadatmand Khan v. Phul Kuar 25 I.A. 146 : 20 A. 412 : 2 C.W.N. 550 they are entitled to have the sale set aside. To bring out clearly the objection of the appellant on this point it is convenient to set out in a tabular form the values of the various properties as stated in the sale proclamation, and the prices as realized at the execution sale: