GOBARDHAN BEHARI BOSE Vs. SARAT CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) This appeal has arisen out of an application made by the judgment-debtors under O.21, Rule 90, Civil P.C., for setting aside a sale held in execution of a decree, passed in Title Suit No. 60 of 1930, by the Subordinate Judge, 3 Court, Hooghly. The sale in execution of the decree was held on 18 November 1930. The application out of which this appeal has arisen, by the judgment-debtors for having the sale set aside, was filed on 15 December 1930. It appears that on 17 December 1930, the receiver who was in possession of the properties sold in execution of the decree applied to have the sale set aside under the provisions of Order 21, Rule 90 of the Code. This application by the receiver for setting aside the sale was dismissed, on 7 February 1931. Thereafter the only proceeding before the Court in the matter of setting aside the sale was the one arising on the application of the judgment-debtors filed in Court on 15 December 1930. The learned Subordinate Judge has disallowed the application made by the judgment-debtors for setting aside the sale. The judgment-debtors have appealed to this Court.

(2.) The first question urged by the learned Advocate appearing for the appellant was directed to the question whether the application made by the judgment-debtors was one maintainable under the law or not. This question was raised before the learned Subordinate Judge in view of the fact that there was the application by the receiver appointed by the Court for setting aside the sale. That application having been dismissed on 7 February 1931, it was contended before the Court below that the application for setting aside the sale as made by the judgment-debtors was not maintainable. Although there is some substance in the question raised as to the maintainability of the application of the judgment-debtors for setting aside the sale, we are not disposed to dismiss their application simply on the ground that it was not maintainable for the reason that the receiver's application for setting aside the sale had been previously dismissed. We gave liberty therefore to the appellants in this Court to go into the other questions raised in support of the appeal before us. So far as the judgment-debtors application for setting aside the sale was concerned the first point sought to be made before us was based upon the fact that the sale was adjourned for more than seven days, and that it was held on 18 November 1930, 17 November being a holiday. It was urged that there was material irregularity in the matter of the sale in view of the fact that it could not be held on 17 November, but was, in fact, held on the date following, which was beyond seven days of the date on which the sale was adjourned. The question thus raised does not appear to have much of substance in it. Conceding in the appellants favour that the sale was held on a date which was not fixed by the Court for the sale of the properties, the fact of the sale having taken place on 18 November amounted at the most to a material irregularity and such irregularity would not be of avail to the judgment-debtors, if it were not possible for them to make out that they had suffered substantial injury or loss on account of the same. A suggestion was made that the holding of a sale on a date which was not fixed by the Court for the sale would make a sale illegal or void which could be avoided as a nullity; and reference was made in this connexion to the decision of this Court in the case of Motahar Hossain v. Mohammad Yakub . In view of the observations made by the Judicial Committee of the Privy Council from time to time, and regard being also had to the fact that in the case to which reference has been made above, there was no date actually fixed for the sale of the properties, it would not lie in the mouth of the judgment-debtors, appellants in this Court, to say that the sale in the present case was one which could be avoided by them on the ground that it was a nullity, seeing that the sale in the present case was fixed for a particular date, but could not be held on the date so fixed, because it was a holiday. Furthermore, it has not been suggested, much less has it been made out, that there was any paucity of bidders or that bidders were not present on account of the sale having taken place on 18 November instead of on 17 November which was a holiday. In this view of the case, the first question raised before us in support of the appeal, must be decided against the appellants.

(3.) It has next been urged that so far as the publication of the sale proclamation was concerned, the evidence adduced on the point on behalf of the decree-holder and the auction- purchaser was not sufficient for the purpose of making out a case that there was proper publication of the sale proclamation. The learned Subordinate Judge, in the Court below, has dealt with the evidence bearing on the point in detail; and reference has been made to the evidence on this point, both oral and documentary, during the hearing of the appeal in this Court. We are unable on the evidence as it stands to come to any finding on the question of the publication of the sale proclamation, other than the finding arrived at by the learned Subordinate Judge. In pur judgment, the evidence given on the point of the publication of the sale proclamation in the locality is satisfactory and convincing. The most material question in the case viz., the one bearing upon the adequacy or otherwise of the price fetched at the sale, has been argued before us at length. As the Subordinate Judge in the Court below has noticed, the most material evidence on this part of the case would be that afforded by the collection papers relating to the properties sold. We have it upon the evidence given by the applicants for setting aside the sale themselves, that there were collection papers in possession of the receiver appointed by the Court. It was frankly admitted before us by the learned advocate for the appellants that no serious attempt was made on behalf of his clients when the case was pending before the learned Subordinate Judge to have these papers produced in Court in support of the evidence on the question of the inadequacy of the price, as alleged by them in their application for setting aside the sale. Some witnesses had been examined on behalf of the petitioners-who stated that the price of the properties sold was much above the price fetched at the sale. But it is impossible for us, as it was impossible for the Court below, to proceed upon mere statements of these witnesses in the absence of any documentary evidence and in the absence of the collection papers which were not produced before the Court by the applicants for setting aside the sale. The learned Subordinate Judge has pointed out in his judgment that on the statement made by one of the petitioners themselves, the price fetched at the sale was more than twenty times of the income of the properties sold. On the facts and circumstances of the case and regard being had to the price actually fetched at the sale, it is impossible for us to hold that it has been made out by the appellants in this Court that there was any inadequacy of price fetched at the sale or that there was any substantial loss or injury suffered by the appellants. In view of the conclusion we have arrived at, this appeal must fail, and we direct accordingly. The appeal is dismissed with costs. We assess the hearing fee in this appeal at one gold mohur to each of the respondents, the decree-holder and the auction-purchaser. M.C. Ghose, J.