SOBHAN KHAN Vs. GANGADHAR SENAPATI

JUDGEMENT

(1.) These applications in revision arise out of a proceeding under Rule 90 of Order 21, Civil P.C., to sot aside the sales of two items of property held in execution of a decree for rent. The petitioners are mortgagees of the tenancy rights. In the first case an area of 2.95 acres was sold for Rs. 40 the estimated value in the sale proclamation being Rs. 35. In the second case an area measuring 1.2 acre was sold for Rs. 25 the estimated value in the sale proclamation being Rs. 25. The applications under Rule 90 were made considerably more than 30 days from the date of the sales, but the petitioner alleged that he had no knowledge of the sales until 2 July, 1940, which was within 30 days from the date of the applications.

(2.) The Court of first instance found that the value put on the properties in the sale proclamation was lower than their real value but was satisfied that the processes had been properly served. The appellate Court also held that the properties had been undervalued and observed that had the applications not been barred by limitation there would have been good grounds for setting the sales aside. The appellate Court also accepted the decree-holder's evidence that processes were duly served and, therefore, did not believe the petitioner's defence that he had no knowledge of the sale until 2nd July.

(3.) In revision it has been contended that the Courts below have misdirected themselves and that this misdirection amounts to material irregularity in the exercise of jurisdiction so as to enable this Court to interfere under Section 115(c), Civil P.C. Reference was made to two decisions of Mitter J. sitting singly in the Calcutta High Court in Bhairab Chandra V/s. Kalidhan Roy and Ramizaddin Basar v. Nimaddi Basar where it was held that where the difference between the real value of the property sold and the estimated value in the sale proclamation is so great as to shock the conscience, the Court should, as a matter of law, infer fraud. It is contended that that observation governs the present case. It is to be observed that in both the cases before Mitter J. the Court of first instance had come to a decision on the evidence that the processes had been fraudulently suppressed and that in each case the decision of the first Court had been reversed on appeal.