JUGAL CHANDRA ANUNI Vs. RAMESH CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) I think this Eule must be made absolute. The petitioner before us is a tenant against whom his landlord brought a rent suit for a sum under Rs. 50 before a Munsif who was specially empowered under Section 153, Ben. Ten. Act. Having recovered his decree, the plaintiff landlord proceeded in execution to put the tenancy to sale and purchased it himself at a sale in execution on 12 April 1926. On the 16 March 1928, some two years later, the tenant, petitioner before us, applied before the specially empowered Munsif under Order 21, Rule 90, Civil P.C., to have the sale set aside. He made no case in his application that the sale was null and void apart from the, Circumstances which were properly within the scope of Rule 90 no case to the effect that the parties had not been brought before the Court or that the proceedings were entirely without jurisdiction. His case was that there had been suppression of processes and that the sale was held at a gross under value. The matter was tried by the Munsif whose order is dated I8feh March 1929. There was in this case not only a delay of two years before the application was brought but a delay thereafter of one year before it was disposed of in the trial Court.

(2.) It appears that the suit when brought against the tenant was brought against him on the footing that he was a minor and a certain person was appointed his guardian-ad-litem. In the execution proceedings, to procure a sale, another person was described as the guardian of the minor, but no steps were taken in the execution proceedings to constitute this other person as guardian of the minor.

(3.) The Munsif dealt with the case as being one on the usual grounds of material irregularity, fraud and substantial injury. He found that the judgment-debtor was a minor and that, although in the execution proceedings one Malik Kola was described as the guardian of the minor, no notice was served on him nor was any step taken to appoint a Court guardian. He said that this was a serious defect in the proceedings in the execution case. It is clear to me that he treated that as an irregularity within the meaning of Rule 90, Order 21, Civil P.C. He pointed out that the value in the sale proclamation was stated as Rs. 50. There were 7? bighas of land and the Munsif was of opinion that something like Rs. 100 per bigha was on the evidence the reasonable price. He treated this undervaluation as a deliberate misstatement and he said that this deliberate misstatement of the valuation was also a material irregularity. So, he dealt with that element too as a finding of material irregularity. On the question whether proper notice of attachment was given and proper service of sale proclamation had been made he said: I am not satisfied about the proper service of these processes, and his conclusion was: I find that there is material irregularity and considering that the 7 1/2 bighas land was sold for Rs. 70 only, I hold there was substantial injury.