NRIPATI NATH BHATTACHARJEE Vs. JATINDRA KUMAR DAS

JUDGEMENT

(1.) This is an appeal by the judgment-debtor No. 4 from an order of the Fifth Subordinate Judge of Dacca, dated the 4 April 1923. The application before the learned Subordinate Judge was to set aside the sale of the properties of the judgment-debtor on the ground that there had been irregularity in the sale and that no sale proclamation was issued in the case. This is Ji6w the matter was opened to us, as the argument proceeded it was urged that the failure to publish the sale-proclamation was not merely an irregularity but an illegality and that the sale was, therefore, vitiated. The debt due to the decree-holder is Rs. 7,000 and odd and it is said that the properties of the judgment-debtor which were sold for just over Rs. 1,000 were in fact worth upwards of Rs. 27,000.

(2.) Now, the facts are set out quite clearly and succinctly in the judgment of the learned Subordinate Judge. He states that in January 1922, the decree-holder applied for execution of the decree and that after the service of the notice the appellant filed an objection in the month of April 1922 to the sale. Then it appears that in May 1922, he gave up a portion of his objection and two days later, namely, on the 8 May, the objection case was dismissed for non-prosecution. It further appears that on that day, namely, the 8 May, the appellant before us and other judgment-debtor who has not appealed, asked for a long time to make a payment and waived fresh sale-proclamation and also all irregularities in the previous sale- proclamation. Thereupon the learned Judge gave them three months time in which to discharge their indebtedness to the decree-holder and he fixed the 8 August 1922 as the date of sale. It appears that he also indicated at that time that if some substantial payment was made on account of the debt he would be prepared to favourably consider any further application for extension of time. No payment, however, was made and the sale took place on the 12 August the properties being purchased by the decree-holder on that date for Rs. 1,085. It appears that when the application to which this appeal relates was made to the learned Subordinate Judge the decree -holder expressed his willingness even then to give up the properties if he got his money and that he was prepared, moreover, to give time to the judgment-debtor to make the necessary payment in discharge of the decree. Even this concession, which was offered by the decree holder, apparently, was not acceptable to the appellant and lie relied on what he considered his strict right, namely, to have the sale set aside on the ground that there was no sale-proclamation.

(3.) Now, it seems to us that the learned Subordinate Judge has quite rightly held that on the failure to publish the sale-proclamation there was an irregularity that could be waived by the judgment-debtor and that it has been waived in the present case. We have, therefore, to consider in this appeal whether the order of the learned Subordinate Judge of Dacca in refusing to set aside the sale is a wrong order.