BEJOY SINGH DADHULIA Vs. ASHUTOSH GOSSAMI

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Hughly, third Court, granting an application by certain judgment-debtors to set aside a sale held in execution of a decree. This decree was obtained by Raja Bejoy Singh Dadhulia Bahadur, the appellant before us, in the Court of the Subordinate Judge of Faridpur, on the 5 April, 1918. The amount decreed was Rs. 20,774-10-9 for arrears of rant and the amount for which the property was attached with the addition of interest and execution costs was Rs. 24,018-1-3. After an order of a transfer, an application for execution was made in the Court of the Subordinate Judge of Hughly on the 21 September, 1919. On this application, the judgment-debtor's ancestral house in the town of Serampore was attached, sale proclamation issued on this 19th December, 1919, and in it the property was valued at Rs. 5,000 which was the decree-holder's valuation. The judgment-debtors objected that the real value of the property was one lakh. The Subordinate Judge on the authority of a decision in this Court Ram Kripal Singh v. Kedarnath Bose (1916) 20 C.W.N. 44 (notes) directed that the value stated by the decree- holder and also that stated by the judgment-debtors should be mentioned in the sale proclamation, the question as to what was the proper value being left open. Sale proclamation was issued in accordance with this direction on the 2nd March, 1920, fixing the 14 April as the date of sale. The judgment-debtors then appealed and obtained a Rule No. 275 against the order directing both valuations to be stated in the sale proclamation and the sale was stayed by an order in Rule No. 201. The appeal was dismissed and the Rule discharged by a Divisional Bench of this Court on the 18 May, 1920. The learned Judges referred to and distinguished the decision in the case of Saurendra Mohan Tagore V/s. Hurruck Chand (1907) 12 C.W.N. 542) and concluded their judgment in Rule No. 275 as follows : "We are unable to hold that the Court can in no case mention in the sale proclamation the value as given by both parties. As, however, there will be a fresh sale proclamation, the Court will consider the desirability of attempting to arrive at an estimate of the value of the property to be sold." On receipt of the order discharging the Rule No. 201 for stay of execution the Subordinate Judge directed on the :7 June, 1920, that execution should proceed and the sale proclamation was again issued on the 23 June, 1920, fixing the 10 August for the sale. On the 3 August the mother of the judgment-debtors claimed a right of residence and maintenance in respect of the attached property and asked that the property be sold subject to these rights. This application was rejected by the Subordinate Judge. Against this order a Rule No. 594 was obtained from this Court and execution was stayed for three weeks. On the 27 August, 1920, this Rule was discharged by a Division Bench of which one of us was a member. That Bench was not satisfied that the application was a genuine application on behalf of the Petitioner, but believed it to have been made in the interest of her sons, the judgment- debtors. Information of the discharge of this Rule reached the lower Court on the 3rd September, 1923, and on the 8 September fresh sale proclamation was issued fixing the 15 November, 1920, for the sale. On the 5 October, the judgment-debtors applied that the value of the attached property be ascertained by the Court on taking evidence. In support of this application a copy of the judgment of this Court in Rule No. 275 of 1920 was filed. It appears that for some reason which has not been explained, the full judgment had not previously been sent to the lower Court. This application was rejected on account of the judgment-debtors delay in making it. The sale was held on the 18 November, 1920. The decree-holder was permitted to bid at the sale "at the highest price" and the property was knocked down to his bid of Rs. 5,000.

(2.) We do not understand the meaning of the expression "at the highest price," but nothing turns on this, since the bid-sheet shows that before this bid was accepted the sanction of the Court was taken after drawing attention to the judgment-debtors as well as the decree-holder's valuation. The 20 December was fixed for the confirmation of the sale. On the 16th December, 1920, the judgment-debtors applied to have the sale set aside under Order 21, Rule 90, Civ. Pro. Code. There was considerable delay in the hearing of this case partly due to the failure of both parties to procure the attendance of their witnesses, and partly to the inability of the Court owing to pressure of other business to take up the case on some of the dates fixed. Judgment was delivered on the 18 August, 1921, granting the application and setting aside the sale, and it is against this order that the present appeal has been preferred.

(3.) The learned Subordinate Judge in his judgment has set out the following three points for determination. 1. Whether the proclamation was not served on the property? 2. Whether the property was undervalued by the decree-holder? 3. Have the applicants sustained substantial injury by the sale? He has found the first point in, favour of the decree-holder and the second and third points in favour of the judgment-debtors. He has also held that the under-valuation of the property by the decree-holder was a material irregularity in consequence of which the Court accepted his bid for Rs. 5,000. For 4he appellant it is contended that there was no material irregularity in publishing or conducting the sale, and, even if there were, the judgment-debtors have failed to establish that they have sustained substantial injury by reason of such irregularity. On behalf of the respondents, in addition to supporting the judgment of the lower Court, it is contended that his finding against them on the first point should be reversed.