SANT PERSHAD SINGH Vs. SHEO NARAYAN SINGH

JUDGEMENT

(1.) This appeal from order arises out of proceedings in execution. The application which initiated the present proceedings was one under Order XXI, Rule 90, to set aside a sale on the ground of irregularity. The case has been argued before us on the basis of the judgment of the Subordinate Judge, which has been taken by both sides as a correct presentation of the facts, but it is maintained that the conclusion of law at which he arrived on those facts is erroneous. The facts found by the Subordinate Judge were succinctly and at the same time clearly placed before us by Mr. Mohendra Nath Roy in the course of his argument. His submission was that six separate facts were found: (1) that the notice required by Rule 66 has not been served; (2) that the proclamation had not been published; (3) that an inadequate price was stated in the proclamation; (4) that an inadequate price was in fact realized; (5) that the value of the properties would not exceed the amount under the decree; and (6) that the defendant s liability under the decree hack ceased. The position constituted by the first four of these facts, then, is this, that there was a group of irregularities; that there was an inadequacy of price, and, according to the concession made before us, that this inadequacy was to be attributed to irregularities. But it was argued, and argued with very considerable ingenuity, that the fifth and sixth findings of fact saved the position, because they brought into play the saying operation of the proviso to Rule 90 That proviso is in these terms: "Provided that no sale shall be set aside on the ground of irregularity or fraud unlees upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud." It is said that there was no substantial injury, because, in the first place, the value of the property would not exceed the amount due under the decree, and secondly, because the defendant s liability had teased. The conjoint operation of this, it is said, is such that it would be impossible to affirm that the applicant had sustained substantial injury. Ingenious as the argument is, I think it cannot be supported. A debtor is entitled to have those steps taken for which provision is made by the Code for the purpose of ensuring that his property will realize an adequate price and so enable him to pay off his debt in money or money s worth. It is no answer to him to say it is quite true there have been irregularities and a consequent inadequacy of price which has prevented you from paying off your debt in full, but you have the satisfaction of a Shelter behind the statute of limitation. That is not all that satisfaction an honest debtor desires and I do not think that the argument and the considerations involved in it are sufficient to enable a decree-holder and purchaser in a case like the present to say that substantial injury has not been suffered simply because further remedies may be barred by some technical rule of law.

(2.) I, therefore, feel bound to come to the conclusion on the first four findings of fact that there has been, as indeed it is conceded for the purposes of the argument before us, an inadequacy of price resulting from irregularities in the conduct of the sale and that this has occasioned a substantial injury to the applicant which has not been removed. I came to this conclusion not without some regret because the decree-holder purchaser was perfectly willing to allow the sale to be treated as one for a value that would enable the judgment-debtor to say that in fact the debt had been paid off in full. Bat the judgment debtor did not see his way to accepting this offer made by the decree-holder, and the result is that we must set aside the sale and, the case must go back to the lower Court where the proceedings in execution must be renewed.

(3.) The opposite party, respondents, must pay the costs in the Court below and in this appeal. We assess the hearing fee in this appeal at two gold mohurs. N. Chatterjea, J.