FAKIRA MAHADJI KUNBI Vs. SANGIDAS SADARAM MAHESRI MARWADI

JUDGEMENT

(1.) TWO persons, Fakira and Sangidas, held simple money decrees against the same judgment-debtor. In execution of their decrees which had been transferred to the Collector, a sale was held and they had obtained permission to bid. The sales in execution of their decrees were held on one proclamation and the sales were held at the same time. Fakira purchased fields to the value of Rs. 1880 and Sangidas purchased two fields, Survey Nos. 9l/l and 214, for Rs. 400 c and Rs. 4600 respectively. This was on 15th May 1933. The bids were accepted by the Collector but meanwhile a third decree-holder had applied for rateable distribution. Consequent on this Fakira and Sangidas were directed to deposit the amounts of the purchase money. Fakira did so but Sangidas failed to comply with the order and the sales of the fields purchased by him were set aside and a fresh sale was ordered. The sale actually took place on 2lst April 1934 and the fields which had previously been purchased by Sangidas for Rs. 400 and Rs. 4600 respectively were bought by Fakira through his son for Rs. 152 and Rs. 660 respectively. Following on this Fakira made an application under the provisions of Rule 71 of Order 21 for the balance of Rs. 4188 claiming it as a loss which has been sustained by him through the default of Sangidas. The proceedings were forwarded to the civil Court by the Collector for disposal.

(2.) THE Subordinate Judge, first class, held that the claim succeeded and on the material point before us, whether the resale on 2lst April 1984 was illegal on account of defects in the procedure previous to the sale, held in Fakira's favour. This point was reversed in appeal by the District Judge who, while agreeing with the First Class Subordinate Judge on the other points raised, held that the procedure adopted prior to the resale was so defective as to render that procedure a nullity, and rendered the other findings nugatory. As the result of this an application in revision has been preferred.

(3.) THE second sale was originally fixed for 16th April 1934 and it was fixed to take place at Mouza Bori Adgaon, a village which lies some 20 miles to the southeast of Khamgaon. On 14th April the Tahsildar who was to have conducted the sale found that it was inconvenient for him to go to Bori Adgaon on the 16th and recorded an order to the effect that the sale was postponed and will be held at Khamgaon itself on 21st April and it was so held. Now, the trial Court on this point has said the following: The sale officer under order sheet dated 14th April 1934 adjourned the sale to be held at Khamgaon on 16th April 1934 and this adjournment of sale, as records show, was proclaimed by the village officers throughout the village of Adgaon and everybody concerned had therefore full notice of this adjournment sale and therefore it cannot be argued that want of notice to intending purchasers was responsible for low price. At the most change of time and place due to adjournment might be a material irregularity and all such irregularities are cured upon confirmation of sale.