RAM PRASAD SINGH Vs. BENI MADHO SINGH

JUDGEMENT

(1.) This is an appeal by one of the judgment-debtors from a decision of the Subordinate Judge of Gaya dismissing his application under Order 21, Rule 90. It appears that a preliminary mortgage decree was passed in favour of the decree- holders in 1920 and it was made final some time in 1925. This decree was executed by the decree-holders and certain properties belonging to the judgment- debtors were sold in four lots. Before the sale took place a notice under Order 21, Rule 66, had been issued, but as the judgment-debtors did not appear the valuation suggested by the decree-holders was accepted and the sale proclamations were issued on the basis of such valuation. The learned Advocate for the appellant has now succeeded in showing that these valuations were inadequate; and this is also clear from the fact that the price fetched at the sale was much higher than the price noted in the sale proclamations. It may also be conceded in favour of the appellant that a gross understatement of the value in the sale proclamation would ordinarily amount to a material irregularity in publishing or conducting the sale. The question to be decided is whether the judgment-debtors sustained substantial injury as a direct consequence of this irregularity.

(2.) Now dealing with the various properties individually, it appears that two of them, Pinjor and Harbanspur Mairwa, were valued in the sale proclamation at Rs. 1,000 and Rs. 500 respectively, but they were sold for Rs. 15,000 and Rs. 7,500 respectively. According to the appellant however their proper respective values should have been Rs. 35,000 and Rs. 20,000. Now, so far as Pinjor is concerned, the appellant has not printed any document to enable us to check the accuracy of his valuation, but one of his witnesses, Lalbahadur Singh, has stated that the value of 8 annas share of this village which was sold was Rs. 34,000 to Rs. 35,000. It appears, however, from the judgment of the learned Subordinate Judge that before him the appellant relied upon the cess re-valuation according to which the annual income of sixteen annas is Rs. 3,095. According to certain calculations which were made in this Court by the learned Advocates appearing for the parties and in which allowance was made for collection charges and the annual cess and revenue payable in respect of this property, it was found that the annual income of the share sold would amount to about Rs. 1250 to Rs. 1,300. That being so, and having in view the fact that the properties sold at a Court sale do not as a rule fetch the same price as they might fetch at a sale arranged by private contract, I am inclined to think that the conclusion of the learned Subordinate Judge, that the property was not sold at a grossly inadequate value, is correct. As I have already stated the price fetched by this property at the sale was Rs. 15,000.

(3.) As to Harbanspur Mairwa the annual income of this property is, according to the cess valuation, Rs. 1,655 and the Government revenue and cesses are Rs. 572 and about Rs. 100 respectively. After deducting these amounts and the usual collection charges the income of 10 annas 5 pies which was the subject of the sale would roughly be Rs. 500, and considering that the price fetched at the sale was Rs. 7,500, that is to say about 15 times the net annual income, it cannot be held in the case of this property also that the sale resulted in a substantial injury to the appellant. As to the other two properties they stand on a somewhat different footing, because it appears from certain admissions made by the appellant's own witnesses in the Court below that the equity of redemption, or whatever interest the judgment-debtors had in these properties, had already been sold previous to the date of the sale with which we are concerned. According to Lalbahadur Singh the fourth witness for the appellant, Saidpur mahal had been sold in execution of a decree obtained by one Jagmohan and purchased by the decree-holder or his wife two or three years before the sale and again according to another witness, examined on behalf of the appellant, Kharrah Rahimabad had been sold in execution of a decree for cess. Considering that the judgment-debtors had no interest left in these properties at the date of the sale, or at the utmost they had a doubtful claim only in respect of these properties, it cannot be said that the appellant was materially prejudiced by the sale of these properties, especially when the price fetched was, as held by the learned Subordinate Judge, though low, not grossly inadequate in the case of these properties also.