JOHN CARAPRET GALSTAUN Vs. SYED MAHAMMAD HUSAIN CHOUDHURY

JUDGEMENT

(1.) This is an appeal by the decree-holder, auction purchaser, from an order setting aside a sale, held in execution of his decree, under Order 21, Rule 90 and Section 47 of the Code. The decree was a money decree for Rs. 14,000 odd passed on 28 January 1921, and at the date of the execution, namely 5 October 1926, amounted to over Rs. 16,000. The sale in execution took place on 17 May 1927, the price fetched being Rs. 8,200. On 30 August 1928 the judgment debtor applied under Order 21, Rule 90 and Section 47 of the Code to set aside the sale. In the application it was alleged that none of the requisite processes were served, that they had all been fraudulently suppressed, and that by means of such fraud, the decree holder had succeeded in purchasing the properties which are valued at Rs. 25,000 for the inadequate price mentioned above. The Subordinate Judge arrived at the following findings. That the properties sold were worth not less than Rs. 25,000 and that the price fetched at the sale was inadequate and caused loss to the judgment-debtor; that all processes were fraudulently suppressed; that the publication in the newspaper Charumihir was only on 3 May 1927 while the date of sale was 16 May 1927 and so the interval was too short; that the judgment-debtor had knowledge of the sale early in Asarh 1335, i.e., June 1928, but as the notice under Order 21, Rule 22, Civil P.C. was not served, the sale was a nullity, and the rule of limitation was three years, the case being governed by Section 47 of the Code and Art. 181, Lim. Act. On these findings the Subordinate Judge has set aside the sale.

(2.) As regards the value of the properties we see no reason to dissent from the opinion which the Subordinate Judge has expressed. The evidence, so far as the question of value is concerned, is practically one sided; and while we are not prepared to accept the exaggerated valuation which has been endeavoured to be made out by the judgment-debtor's witnesses we do not think that Rs. 25,000 is an over-estimate, at least upon the materials that are on the record. The judgment-debtor however had ample opportunities while the case was pending in the Court below as also since the date on which we heard this appeal and till now to find a purchaser for the amount of the decretal dues, but he has failed, though when examined as a witness in this case on 11 May 1929 he said: Anyone will pay Rs. 15,000 for the properties sold. I have not so much cash money to spare.

(3.) There is therefore difficulty in finding a purchaser for Rs. 16,000 or so. On the whole however it is clear that the price fetched was not adequate and it must be held that the judgment-debtor has suffered substantial injury on account of inadequacy of price. On the question of the service of the processes the finding of the Subordinate Judge is in these words: I think upon the entire evidence in the ease the conclusion is inevitable that there is no satisfactory proof that the processes were served. I must hold that the processes were not served. Indeed in this case no genuine attempt was made on behalf of the decree-holder to prove the services. In a case where the decree- holder gives up all attempt to prove the service of the processes, it renders no help to show how things were done or the manner in which the service was effected, I think the Court would be justified in holding not only that the processes were not served, but that they were fraudulently suppressed.