PIRAMAL GOENKA Vs. BASANTI DAS CHATTERJEE

JUDGEMENT

(1.) This appeal is on behalf of the auction purchasers (who are also the decree-holders) and is directed against the order of the Subordinate Judge of Asansol, dated 26 June 1933, by which he has set aside the auction sale. The appellants before us lent to one Pran Kissen Chatterjee, father of respondents 1 to 3, Karali Prosad Chatterjee, father of respondents 4(a) to 4(c) and to the other respondents large sums of money on the security of immovable properties, mostly coal lands. On 9 December 1925 they obtained a preliminary decree for sale of the mortgaged properties, the amount due to them up to the day of grace being found to be Rs. 2,66,783-13-6. The final decree for sale was passed on 9 June 1926, the mortgaged properties were put up for sale on 9 November 1926, and were purchased, some by the decree-holders and some by a stranger, at the price of Rs. 20,000. An application to set aside the said sale by the judgment-debtors was dismissed for default by the Subordinate Judge, and while an appeal was pending in the Court the decree-holders obtained on 21 May 1927 a personal decree against the judgment-debtors under the provisions of Order 34, Rule 6, Civil P.C. The appeal preferred by the judgment-debtors to this Court ended in a consent order, but the judgment-debtors having failed to carry out the terms of the said order the sale of the mortgaged properties was confirmed in terms of the said order.

(2.) On 9 August 1927 the appellants put in an application in the usual tabular form for execution of the personal decree. They prayed for attachment and sale of a decree obtained by judgment-debtor 3 against a third person and for realisation of the balance by attachment and sale of the movable and immovable properties belonging to the other judgment-debtors. The application further stated that: The boundaries of the said movable and immovable properties will be filed by them in Court after attachment of the aforesaid decree.

(3.) There can be no doubt that the application for execution was drafted in a loose way. It was registered on 9 August 1927, although no inventory of movable properties and no list of immovable properties had been supplied by the decree-holders. After the decree mentioned in the application for execution had been attached, the decree-holders supplied the list of movable and immovable properties which they wanted to sell. This was done on 15th September 1927. The executing Court on the same date issued the order of attachment and the attachment of the immovable properties with which we are concerned was actually effected on 29 September 1927. The judgment-debtors took up the position in the lower Court that all processes and notices, as also the sale proclamation has been suppressed by the decree-holder, but before us they have accepted the findings of the Subordinate Judge relating to the attachment and service of sale proclamation. They have however maintained that the notice issued on them for settling the terms of the sale proclamation under Order 21, Rule 66 had been suppressed.