CHUTTAN LAL Vs. MDIKRAM KHAN

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order refusing to set aside an auction-sale. The judgment-debtor alleged material irregularities and fraud in publishing and conducting the sale and substantial injury in consequence. It appears that a simple money decree dated 16th. July 1929, had been in execution for some time. Landed properties belonging to the judgment-debtor were attached and execution was sought against them. It is not necessary to go back earlier than August 1930. The 20 August was fixed for the sale of the properties. The properties being revenue paying lands, the sale had to be conducted y the Collector. The order passed by the Subordinate Judge fixing the date, as noted in the order sheet, did not specify the hour at which the sale would take place, but the sale-proclamation which was issued mentioned the date as well as one o clock as the hour at which the sale was to take place. It may also be noted that the incumbrances were not specified in the sale-proclamation but were specified in the order (rubkar) of the Court accompanying it when it was sent to the sale officer.

(2.) On 16 August, shortly before the date fixed, the judgment-debtor applied to the Court for the postponement of the sale. This application came up for disposal on the 20 and be made a statement that the sale should be postponed and 24th October 1930 be fixed for the sale, and that it should take place on that date without the issue of a fresh proclamation of sale. On this statement the Court postponed the sale and fixed 24 October for the next sale. As the judgment- debtor had agreed that there should be no fresh proclamation of sale issued, none was issued. On 24 October 1930, the Collector had about 104 items of properties for sale. These were grouped together under two different headings "Ancestral" and Non-Ancestral." In order to clear up this point the counsel for the parties agreed that the list of sale which was before the sale-officer on that day should be sent for. That register has come and we have looked into it with the consent of the counsel for both the parties. Items 1 to 74 were ancestral properties and items 75 to 104 were non-ancestral properties. Rai Bahadur Babu Jagannath Prasad has stated that the sale officer announced at the beginning of the sale that he would sell the non-ancestral properties first and the ancestral properties the next day. The judgment-debtor's properties, which were at serial No. 78., were put to auction at about 1 o clock. Village Phulat was sold for Rs. 5,500 and village Muhammadpur for Rupees 1,543.

(3.) The judgment-debtor did not deposit the amount of the decree which was about Rs. 7,000 within 30 days and did not apply to have the sale set aside under Order 21, Rule 69, but preferred to have it set aside on the ground of irregularity and fraud under Rule 90. Various objections were urged in the Court below, but, as the order of the learned Subordinate Judge shows, he following points were pressed before him The decree-holder won over some official of the sale-officer's office and got the property sold first. (2). The sale-proclamation did not mention the incumbrances over the property. (3) The Court when postponing the sale did not specify the exact hour at which the sale should be held. (4) That fraud was practised inasmuch as intending purchasers were induced to go away by a misrepresentation that the sale would not take place that day or at earliest would be held late in the evening. (5) That the estimates of the values of the properties mentioned in the sale proclamation were grossly low which misled the intending purchasers. (6) That the actual value of the property was over Rs. 1,00,000.