NANHELAL Vs. UMRAO SINGH

JUDGEMENT

(1.) This is an appeal by special leave. It raises an, interesting question as to execution proceedings which seems to be of not infrequent occurrence. Differing opinions have been expressed in India, particularly in the Court from which the appeal comes and the matter calls for an authoritative decision. Under these circumstances it is a matter of regret to their Lordships that the respondents have not been represented before them. The proceedings in question commenced with an award by the Registrar of Cooperative Societies, Central Provinces and Berar. By this award the respondents were ordered to pay to the Mauegaon Society a sum of Rs. 2,109-2 with interest and in default, certain immovable property of the respondents, which had been mortgaged to the Society, and which was described as Patti No. 2 half-share of Mauza Bagada (or Bagra) Manegaon in the Hoshangabad District, was ordered to be sold. By virtue of rules made by the Local Government under the Co-operative Societies Act 2 of 1912, the award was enforceable in the same manner as the decree of a civil Court. The money not having been paid, execution proceedings were taken by the Society as decree-holders and after the usual formalities, the property was, on 15 September 1923, put up, to auction and knocked down to the appellants at the price of Rs. 7,100 of which the prescribed 25 per cent, was paid at the time of the sale.

(2.) On 24 September, before the sale was confirmed the respondents, the judgment-debtors, put in what may be called the usual application to set aside the sale on the ground of fraud and irregularity in the conduct of the sale. The law relating to such applications if) contained in O. 21, Rr. 89-92, which are in the following terms : 89.-(1) Where immovable property had been Bald in execution of a decree, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale not aside on his depositing in Court : (a) for payment to the purchaser a sum equal to and per cent of the purchase money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of Hale, have been received by the decree-holder. (2) Where a person applies under R. 90 to sot aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieved the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. 90. - (1) Where any immovable, property has been sold in execution of a decree, the decree holder, or any person entitled to share in a rateable distribution of assets, or whose interacts are affected by the sale, may apply to the Court to act aside the sale on the ground of a material irregularity or fraud in publishing or conducting it;

(3.) Provided that no sue 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. 91.-The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold. 92.-(1) Where no application is made under Rr. 89, 90 or 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. (2) Where such application is made and allowed, and where in the case of an application under R. 89, the deposit required by that rule is made within 30 days from the date of sale, the Court shall make an order setting aside the sale.