SARADINDU MUKERJEE Vs. GIRISH CHANDRA TEWARI

JUDGEMENT

(1.) The facts relating to this Rule are that the petitioners who are the decree-holders attached in execution of their decree certain properties belonging to the judgment debtor. A claim was preferred by a certain person in respect of two of those properties. The petitioners applied for the issue of the sale proclamation and it was ordered on the 13 February 1922 that the sale proclamation might issue on their depositing cost. On the 18 March 1922 the claim was allowed and two of the properties were released from attachment. On the 18 March the petitioners applied for the issue of fresh sale-proclamation in respect of the remaining properties. The order passed thereon was that the 11 May 1922 be fixed for the sale and that the sale proclamation should issue on the petitioner's paying the necessary costs. On the 11 May, the following order was passed. "Correct processes not filed and no further steps taken. The execution case be dismissed for default." In the petition which has been presented to this Court it is alleged that the petitioners were asked by the officer-in-charge of the Execution Department to take back the sale proclamations previously filed and to file correct ones. The petitioners thereupon put in two correct proclamations and two new proclamations and offered to deposit costs for the usual advertisement in the newspapers. They, however, did not alter the original date that was put on the processes because they say that the dates were to be put in by the officer of the Court under Rule 11, Sub-rules (1 and 4) of the General Rules and Circular Orders (Civil) of the High Court.

(2.) On the 11 May it is further alleged that their officer went to the officer-in-charge of the Execution Department and was given to understand that the sale day was again fixed for the 13 July. These allegations have not been contradicted and I must take them as they stand as it appears that the learned Munsif who had to enquire into this matter believed this state of filings. On the 11 May the Court passed the following order: "Correct processes not filed. No further steps taken. Execution case be dismissed for default." It does not appear from the order, nor have I been enlightened upon this point, as to which portion of the processes filed was incorrect. But I take it, as has been alleged by the petitioner, that the incorrectness lay in the wrong date that was allowed to stand on the proclamations.

(3.) Thereafter, the petitioners applied for Hotting aside the order passed on the 11 May and for restoration of the execution case. The application was headed under Order 47, Rule 1 and Section 151, Civil Procedure Code. The application was registered as one under Order 47, Rule 1. It was presented not before the officer who passed the order on the 11 May, but before his successor and it was heard by another officer succeeding the latter.