SM ASHALATA BOSE Vs. MANINDRA NATH BOSE

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder auction purchaser and it arises out of a proceeding commenced by the judgment-debtors to set aside an execution sale under Section 47 and Order 21 Rule 90, Civil P.C. The appellant obtained a decree for a sum of Rs. 3550 against the respondents in Title Suit No. 19 of 1936 of the Court of the First Subordinate Judge at Howrah, and there was a declaration of charge in respect of the decretal dues upon certain properties specified in the decree. The decree-holder applied for execution of the decree by sale of some of the charged properties, and sale proclamation was issued fixing 10 January 1938, as the date of sale. On 3 January 1938, a notice was received by the executing Court from the Debt Settlement Board at Sajipur, under Section 34, Bengal Agricultural Debtors Act, requesting the Court to stay all further proceedings in execution. On account of this notice the sale could not be held on 10 January 1938, and on that date the decree-holder prayed for a little time in order to enable her to make enquiries regarding the proceedings before the Debt Settlement Board. The Court directed the matter to be put up on 15 January, following, and by another order recorded on the same day directed the sale to be stayed until further orders. On 15 January 1938, the stay order was vacated and the properties with the exception of certain lots were ordered to be put up for sale on 17th January 1938 at 12 noon. On 17 January 1938, the sale was held, but the bid being too low, it was not accepted by the Court, and the properties were directed to be sold again on the following day. On the 18th, the sale was again held, and the bid of the decree-holder herself being accepted by the Court, the properties were knocked down to her.

(2.) The judgment-debtors then made an application for cancelling the sale on the ground, that it was a void sale, the notice issued under Section 34, Bengal Agricultural Debtors Act, not being withdrawn at the date when the sale was held. This application was rejected by the Court on 29 January 1938. On 22 August, 1938 the present application was filed under Section 47 and Order 21, Rule 90, Civil P.C., and the judgment-debtors prayed for setting aside the sale on the ground that it was an irregular and illegal sale held in contravention of the provisions of the Civil Procedure Code. Both the Courts below have held the sale to be a nullity and have set it aside on that ground. It is the propriety of this decision that has been challenged before us in this appeal. The learned District Judge observed in his judgment, that as the sale was stayed without date on 10 January 1938 and a definite date was fixed only on the 15th, the provision of Order 21, B. 69, Civil P.C., was not complied with, and the sale was consequently a void sale. In support of this view, reliance was placed on a decision of this Court in Motahar Hossain V/s. Mahomed Yakub . In that case the date of sale fixed by the Court was 1 July 1922. That date happening to be a holiday, the sale could not take place. In a title suit commenced by the sisters of the judgment-debtor claiming the property, an order was made on 4 July 1922, that the execution case should be put up on 7 July with an application for injunction to restrain the sale. On 7 July, the injunction was refused and the property was put up for sale on that date and was sold. It was held that as there was no order of the Court adjourning the sale to 7 July 1922 the sale held on that date was a nullity.

(3.) This decision obviously proceeds on the footing that the executing Court can put up a property to sale, either on the day on which the sale was advertised to take place, or on the day to which the sale was adjourned under Order 21, Rule 69, Civil P.C., and the sale would be without jurisdiction if it is held on a day to which it never had been adjourned. The proposition finds some support from the observation of Sir Comer Potharam in Basharutulla v. Uma Churn Dutt ( 89) 16 Cal. 794. On the other hand, there are other decisions of this Court, where the learned Judges refused to take this extreme view and treated such defect as nothing more than a material irregularity which could be redressed pursuant to the provisions of Order 21, Rule 90, Civil P.C., vide Harisadhan Roy V/s. Shib Gopal ( 21) 8 A.I.R. 1921 Cal. 597 and Jogendra Nath V/s. Nabi Newaj . In the last mentioned case Edgley J. relied upon the pronouncements of the Judicial Committee in Tasadduk Rasul Khan V/s. Ahmad Husain ( 94) 21 Cal. 66 and Gajraj Mati V/s. Saiyid Akbar Husain ( 07) 29 All. 196 and held that failure to comply with the provisions of Order 21, Rule 67 to Rule 69 of the Code, would not alone sender a court-sale a nullity and it would be necessary for the aggrieved persons to treat such non- compliance as a material irregularity and take proper steps to have the sale set aside on proof of substantial injury, under Order 21, Rule 90, Civil P.C. In 20 I.A. 176 5 the sale was held at a date which was less than 30 days from the date on which the copy of the proclamation was fixed up in the Court house. This violation of the provisions of Section 290 of the then Civil Procedure Code which corresponds to Order 21, Rule 68 of the present Code did not according to their Lordships render the sale a nullity. It constituted a material irregularity, and before the sale could be set aside it was necessary for the aggrieved party to show substantial injury. In the other case, a fresh sale proclamation was not issued as required by Section 291, (O. 21, Rule 69), Civil P. Code, and it was held that such omission would not make the sale a nullity.