JADUNANDAN PRASAD BHAGAT Vs. WAJID ALI MIAN

JUDGEMENT

(1.) This is an appeal by some of the judgment debtors against the order of the Subordinate Judge of Pakur, dismissing their application for setting aside a sale under Order 21, Rule 90, Civil P.C. The sale was held in execution of a compromise decree on 12 July 1930 for a sum of Rs. 3,100 subject to an encumbrance of Rs. 1,800. The ground taken by the learned advocate for the appellants is that their objection Hinder Order 21, Rule 90 was dismissed by the Subordinate Judge summarily without taking any evidence. It appears from the application filed under Order 21, Rule 90 that the allegations made in it were such as required evidence to prove them.

(2.) For instance, the allegations were that the sale proclamation was not at all published, that one of the. judgment-debtors was dead more than two years ago, and the execution could not proceed without amendment of the execution petition in respect of the deceased judgment-debtor, that the price fetched at the sale was wholly inadequate and that there was material irregularity and fraud in conducting and publishing the sale and that the inadequacy of price was due to such irregularity and fraud. Allegations such as those could not be established without evidence. It appears from the order sheet that on receipt of this application the learned Subordinate Judge made an order on 11 August 1930 to put it up with the record.

(3.) The next order in the order sheet is dated 12 August 1930 which is to the effect that the petition will be heard and notice was directed to be given to the decree-holder and the auction purchaser, fixing 11 September 1930. The order- sheet shows that on 11 September the appellant was present and the decree- holder was also represented, but that the auction-purchaser had not been properly served and the order made on that date was to issue notice to the auction- purchaser fixing 31 October 1930. These orders appear to have been passed at Pakaur. The next order of 31 October 1930 has an endorsement in the margin which, according to the learned advocate for the appellant, is Amrapara, and the learned advocate states that this order of 31 October 1930 was passed when the Subordinate Judge was in camp at Amrapara at a distance of 82 miles from Pakaur. The order of 31 October shows that both sides were represented by pleaders and arguments were heard, and the learned Subordinate Judge fixed 15 November 1930 for orders. On 15 November 1930, the order sheet shows that orders could not be passed as he had not gone through the record and he directed it to be put up on 17 November for orders. The order of 17 November shows that pleaders were again heard on that date and by this order he dismissed the application as frivolous. It is against this order of 17 November 1930 that the appellants have come in appeal to this Court.