DEVI PROSAD BHAGAT Vs. NAGENDRA KUMAR NAG

JUDGEMENT

(1.) This appeal is directed against an order setting aside a sale under the provisions of Order 21, Rule 90 of the Civil Procedure Code.

(2.) The circumstances are as follows: The landlord obtained a decree for arrears of rent in respect of a patni against five brothers and the widow of a sixth. The decree was for a sum of rather more than Rs. 12,000 with costs in addition. On June 22nd, 1921, the decree-holder applied for execution of the decree by the sale of the patni tenure and the Court ordered notices to be issued under Order 21, Rule 66, and fixed the case for July 12th. On that date the decree-holder filed an affidavit to the effect that these notices had been duly served. At the same time, he asked that by way of precaution registered post-cards should be sent to the judgment-debtors, as none of them had entered appearance. The Court ordered this step to be taken and the case was adjourned for a week. On July 19 decree-holder filed an affidavit to the effect that the value of the patni tenure was Rs. 4,000. As the judgment-debtors did not appear and there was no other evidence before the Court in regard to the value of the property, it was ordered that the approximate value of the property should be entered in the sale proclamation as Rs. 4,000; writ of attachment and sale proclamation were then issued, and an advertisement of the sale sent to the Calcutta Gazette for publication. September 15th was fixed as the date of sale. On that day one of the judgment-debtors (No. 2 not the contesting respondent) appeared and asked for an adjournment. The sale was put off to September 19th. On that date five of the judgment-debtors asked for an adjournment and the sale was again postponed but for one day only. On September 20 the sale took place and the property was sold for Rs. 5,200 to the appellant Debi Prasad Bhakat.

(3.) On November 3rd, 1921, the fourth judgment-debtor, Nagendra Kumar Naga applied under Order 21, Rule 90 to have the sale sot aside. In his petition he alleged that the writ of attachment and the sale proclamation were not duly served, that the value of the property was at least Rs. 18,000, that the sale was the result of collusion between his brothers and the decree-holder, and the purchase was made for the benefit of his brothers, and that the inadequate value mentioned in the proclamation constituted a material irregularity.