MOTAHAR HOSSAIN Vs. MOHAMMAD YAKUB

JUDGEMENT

(1.) This Rule was obtained at the instance of the judgment-debtor to set aside a sale which was held on the 7 of July on the ground that no date and time were fixed for the sale and that no time was notified for the sale in accordance with the provisions of Order 21, Rule 69.

(2.) The facts are as follows:-The 1 of July, 1922 was the data fixed for the sale of the property taken in execution. The 1 of July happened to be a holiday and the sale accordingly could not take place. A title suit had been commenced by the sisters of the judgment-debtor claiming the property, and on the 4 of July, 1922 an order was made that the execution case should be put up on July 7 along with an application for an injunction to restrain the sale which was being made in the title suit. The judgment-debtor apparently thought that no sale would take place on the 7th, but that only the application for an injunction to restrain the sale would be dealt with. But it appears that on the 7 July, 1922, the injunction was refused in the title suit and the property was put up for sale on that day and it is under these circumstances that the present Rule was granted.

(3.) It is urged by the decree-holder who appears to show cause that in an application under Order 21, Rule 90 we cannot interfere under the circumstances of this case and it is urged that upon the facts as found by both the Courts below there was no loss occasioned to the decree- holder by reason of the sale which was held on the 7 of July, having regard to the price which was obtained for the land and it is stated that under these circumstances we cannot interfere under the provisions of Order 21, Rule 90. We were referred, moreover, to a case of the Judicial Committee, Rang Lal V/s. Ravaneshwar Prasad Singh (1912) 39 Cal. 26 in support of the proposition that under Order 21, Rule 90 in the circumstances of this case we should not interfere. We have read the decision of the Judicial Committee and it seems to us that the decision was really based on the facts which were found with regard to the monthly sales. Apparently the monthly sales were held on certain dates and the last date of the monthly sales was the 13 of July. The monthly sales could not be held on that date as the presiding officer was absent. On the 17 July an application was made for postponement of the sale on grounds stated in the judgment. This application was refused and the property was put up for sale at the ordinary monthly sale held on the 20 of July. The facts in that case seem quite different from the facts here; for clearly in view of the refusal of the application on the 17 of July the parties knew that in the ordinary course the property would be put up at the monthly sale on the 20 July, But here it seems to us that there was nothing to lead the judgment- debtor to expect that any sale of the property would take place on the 7 of July and in the circumstances we think that the sale was really a nullity and that the only course open to us is to make the Rule absolute in the terms on which it was granted.