KALOO KANHAIYA PATEL Vs. R. B. GOVINDRAO

JUDGEMENT

(1.) STAPLES , A.J.C. 1. This is an appeal against the order of the Subordinate Judge, first class, Khandwa, setting aside sales in execution proceedings Under Order 21, Rule 90, Civil P.C. The appeal is made by the auction-purchaser, whilst the respondents are the two decree-holders Rai Bahadur Govindrao and Ramcharanlal and the judgment-debtor Tarachand. It is, admitted that a house and a theatre belonging to the judgment-debtor were attached in execution proceedings. The judgment-debtor however made applications for time and made various payments. The sale was originally fixed for 28th July 1930. From the order-sheet of 31st July it appears that, as the judgment-debtor had made payment and agreed to make a further payment on 1st October, the sale was not held. It was written however that if the judgment-debtor did not pay the Rs. 400 promised on 1st October, the property would be sold on that date without further proclamation: if however that amount was paid on 1st October, the balance of the decretal money was to be paid on 5th January 1931 the judgment-debtor agreeing to pay interest at 1 par cent per mensem.

(2.) ON 1st October time for payment was granted until 10th October and again the sale was postponed till 13th October, and on that date both parties filed an application to postpone the sale to 5th January. The sale was accordingly postponed on the terms stated in the application, and it is recorded in the order-sheet that if the amount of Rs. 1,000 was not paid by 5th January 1981, the property attached would be sold without proclamation on that date. On 5th January 1931 the judgment-debtor was absent and the amount was not paid. The decree-holder asked for the property to be sold, and the Subordinate Judge passed an order that the property should be sold forthwith, the sale to begin at 3 p.m., and a report to be made on 10th January 1931. On 10th January an application was filed by the decree-holder that the price fetched was low and that the house should be re-sold, and a notice was ordered to issue to the purchaser. After various hearings Mr. Alay Raza, the Subordinate Judge who succeeded Mr. Shrovti, the, Subordinate Judge who passed the order for sale, found that there was material irregularity in the sale proclamation and that the judgment-debtor had suffered loss and substantial injury. He also found that the sale of the property was held in a hasty manner and therefore considering that it was fit case for setting aside the sales, he set them aside and ordered fresh sale. The purchaser has now appealed.

(3.) THE Subordinate Judge has found that there was an irregularity in the original proclamation of sale, namely, that the time was not fixed definitely, and it was said that the sale was to take place from 11 till