RAM RANBIJAYA PRASAD SINGH Vs. LACHIMI SINGH

JUDGEMENT

(1.) This appeal by the decree-holder must be allowed. The appellant was executing a rent decree in rent execution case No. 160 of 1939. The property was put up to sale, but the amount bid by the decree-holder was less than the amount fixed by the Court in the sale proclamation. The decree-holder refused to bid up to that amount , although the Court tried a number of times that the decree-holder should raise the bid. Ultimately, as the decree-holder was not willing to raise the bid, the executing Court dismissed the execution as infructuous. An appeal against the order of the learned Munsif was dismissed by the learned Subordinate Judge, first Court, Arrah, on 16 May 1941. Hence the miscellaneous appeal to this Court.

(2.) I cannot see any justification for the procedure adopted by the executing Court in dismissing the execution. Reliance was placed on behalf of the respondents on Section 163-A, Bihar Tenancy Act, which provides that a holding shall not be sold for a price lower than that specified in the sale proclamation. Provided that if the highest amount bid for such holding or portion of a holding is less than the price specified for the same in the sale proclamation, the Court may sell such holding or portion for such highest amount if the decree-holder consents in writing to forego so much of the amount of the decree as is equal to the difference between the highest amount bid and the price specified for the holding or portion in the sale proclamation : Provided further that nothing in this section shall apply to the sale of a holding in execution of a decree passed in a suit in which the defendant has been held to be a habitual defaulter.

(3.) I do not find anything in the judgments of the Courts below that the Court desired that the decree-holder may forego so much of the decree as is equal to the difference between the highest amount bid and the price specified in the sale proclamation. Further, I do not see any provision in this section which can force the decree-holder to bid up to the amount fixed by the sale proclamation in default whereof the execution must be dismissed. In these circumstances, the Court must again advertise the property and call for a fresh set of bidders. It may be that the bidders present were not willing to bid higher or that the price fixed in the sale proclamation was high. Be that as it may, the duty of the Court was to issue a fresh sale proclamation at the expense of the decree-holder. The learned Subordinate Judge observes that the property was put up for sale on 11 March 1940 ; it was again put up for sale on 15 March 1940, but the decree-holder declined to bid up the value fixed by the Court. The property was again put up for sale on 18 March 1940, but still he did not raise the bid. It is thus clear that the decree-holder's amlas took no notice of the fact that the decree was time-barred and their master would be deprived of the money if they did not bid up to the value fixed in the sale proclamation.