SM BHABASUNDARI DASSI Vs. GOPESWAR AUDDY

JUDGEMENT

(1.) Defendants 2 and 3 have applied to set aside a sale by the Registrar in execution of a mortgage decree. The mortgaged property is No. 12, Blackburn Lane in Calcutta and belonged to the Auddy family. Hari Charan who represented one branch of the family mortgaged his undivided half share in the property in 1931. The property was then the subject-matter of a partition suit in which in 1935 the southern portion of the property was valued at Rs. 11,438 and was allotted to Hari Charan. The northern portion valued at Rs. 11,025 was allotted to the other branch of the family. The final decree in the partition suit was passed in June 1935 and the mortgagee sued two months later to enforce his security. The present applicants are two of Hari Charan's sons and represent the mortgagor. The mortgagee obtained a final decree for sale of the mortgaged property on 27 February 1939. After two adjournments, Bhagabati Dassi, the wife of one of the owners of the northern portion, bought the property at the Registrar's sale for Rupees 11,500 on 16 March 1940. It is not disputed that this sum exceeded the reserve price and that the Registrar was entitled to accept the purchaser's bid. It is also admitted that the property has been scheduled for acquisition by the Calcutta Improvement Trust and that the Trust have valued it at about Rs. 18,500. That valuation was accepted by the trustees at a meeting held on 6 April, and this summons to set aside the sale was taken out on 11 April 1940. The notification of purchase by the Trust appeared in the Gazette on 9 May.

(2.) The petitioners in their petition state that they are willing to deposit in Court 5 per cent. of the amount paid by the auction-purchaser and the costs of the Registrar's sale. No deposit has in fact been made. For the petitioners it is argued that, since this was a sale by the Registrar under the rules governing sales on the original side of this Court, the provisions of Order 21, Rule 89, Civil P. C., are not applicable and the Court has an unfettered discretion to decide whether the circumstances are such as to justify setting aside the sale, and if so, the conditions on which the sale should be set aside. It is further submitted that the circumstances disclosed, namely that the property is now scheduled for acquisition at a price 30 per cent. in excess of the price at which it was sold, justify the conclusion that the sale price was inadequate, and that the Court should exercise its discretion in favour of the mortgagor after awarding compensation to the auction-purchaser for the loss of his bargain.

(3.) The mortgagee originally opposed the application but at the hearing he supported the mortgagor. The question whether Order 21, Rule 89, Civil P. C., applies to sales by the Registrar held under a decree on the original side of this Court has been a vexed question for many years. In 1915 Woodroffe J. decided in Surendra Kristo Roy V/s. Gooroo Prasad ( 17) 4 AIR 1917 Cal 51 that the provisions of Rule 89 were not intended to apply to a sale by the Registrar in conformity with the rules of the original side of this Court, without attachment of the property; and, in coming to that conclusion, the learned Judge pointed out the difference in procedure, and in the assessment of costs and commission, between sales on the original side of this Court and sales in the mofussil. In 1898 an earlier decision of the Full Bench of this Court had also considered the question in Kedar Nath Raut V/s. Kali Churn Ram ( 98) 25 Cal 703. The provision of the Civil Procedure Code which at that time corresponded to Order 21, Rule 89 was Section 310A, and the Full Bench held that Section 310A did not apply to sales of mortgaged property under the Transfer of Property Act, and that Section 310A was inconsistent with the original side rules and was not applicable to such sales. It has now been decided that Rule 89 of Order 21 applies to mortgage suits, but I refer to the above Full Bench decision because in the course of his judgment Sir Francis McLean C. J. pointed out that the applicability of Section 310A to mortgage suits might have a mischievous tendency and would be inconsistent with the prevailing practice. In 1920 the question came before an Appellate Bench of this Court composed of Sir Ashutosh Mookerjee A. C. J., and Fletcher J. in Virjiban Dass Moolji V/s. Bissesswar Lal Hargovind ( 21) 8 AIR 1921 Cal 169 on appeal from a decision of Greaves J. The trial Judge considered that he was bound to follow the judgment of Woodroffe J. in Surendra Kristo Roy V/s. Gooroo Prasad ( 17) 4 AIR 1917 Cal 51. The appellate Court held that Order 21, Rule 89 applied, to sales held in execution of mortgages on the original side of this Court. That decision is undoubtedly binding upon me but the question has been subsequently agitated, and on the appellate side of this Court, in Kalyani Debi V/s. Hari Mohan Ghosh . There the mortgagor applied to set aside a sale on deposit of the balance of the decretal amount and 5 per cent. of the purchase money. The application was allowed and the auction-purchaser appealed. The appellate Court dismissed the appeal and in the course of his judgment Rankin C. J. said: The main difficulty arises by reason of the fact that that rule is framed in language, which though well adapted to mofussil practice, is not in terms applicable to the practice of the High Court on its original side as regards sales held in execution of mortgage decrees. The amount to be deposited for payment to the decree-holder, it is said by the rule, is the "amount specified in the proclamation of sale as that for the recovery of which the sale was ordered," and it is expressly provided by the last clause of the rule that nothing in Rule 89 shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. There are authorities which say that as this rule is a concession to judgment-debtors it is to be applied strictly; and there can be no doubt of the correctness of this in cases to which the rule can be applied strictly. When by reason of the fact that no "amount is specified in any proclamation of sale as that for the recovery of which the sale was ordered," it is impossible to apply those words strictly, it appears to me that in a matter of this kind what this Court has to do is to apply those words as fairly as possible to the circumstances of the sale on the original side.