AIJAZ AHMAD Vs. NAZIRUL HASAN

JUDGEMENT

(1.) The question of law that arises in the present appeal is whether a Collector has jurisdiction to set aside the sale of immovable property held in execution of a decree transferred to him by the Civil Court in accordance with the provisions of Section 68, Civil P.C., after the sale has been confirmed by him and the record of the execution case has been retransmitted to the Civil Count, if he is satisfied that the decree-holder, by the exercise of fraud, kept the judgment-debtor ignorant of the execution proceedings culminating in the sale of the property and of the confirmation of sale, when as a consequence of his fraud the decree-holder succeeded in purchasing the property of the judgment-debtor for much less than its real value.

(2.) The plaintiff-respondent held a decree for costs for a sum of Rs. 1,585 against Mohammad Munawar, the predecessor in interest of the defendants. The plaintiff applied for execution of the decree by attachment and sale of 1 anna 2 pies share out of 4 annas 4-2/7 pies in village Sarai Kheta belonging to the judgment-debtor. The Civil Court transferred the decree for execution to the Collector. A proclamation of sale was issued by the Collector showing an encumbrance of Rs. 30,000 on the 4 annas 4-2/7 pies share. The 1 anna 2 pies share that was advertised for sale was actually sold by the Collector on 22 September, 1922 and was purchased by the decree-holder for a sum of Rs. 1,000 and the sale was confirmed by the Collector on 26 October 1922. The record of the execution case was thereafter sent back by the Collector to the Civil Court in May 1923. The decree-holder obtained the sale-certificate on 20 August 1925, and formal delivery of possession was made over to him on 14 October 1925.

(3.) Within a month of the date of delivery of possession, viz., on 12 November 1925, Mohammad Munawar, the judgment-debtor, filed an application before the Collector for setting aside the sale. The application was based mainly on the allegation, that the decree-holder by the exercise of fraud kept the judgment- debtor utterly uninformed of the execution proceedings and thus succeeded in purchasing property of considerable value at a very low price. It was stated in the application that the decree-holder intentionally did not allow notice of the execution proceedings to be served on the judgment-debtor, and took steps to prevent the judgment-debtor from getting information of the proclamation of sale or of the fact that the property was ordered to be sold. It was further alleged that no proclamation of sale was made by beat of drum as required by the rules and that, in consequence of the fraudulent proceedings of the decree-holder, no intending purchasers except the decree-holder were present on the date fixed for sale and thus the decree-holder succeeded in purchasing property of the value of Rs. 21,000 for a sum of Rs. 1,000 only. The judgment-debtor also asserted that the decree-holder, to conceal his fraudulent proceedings and to keep the judgment-debtor ignorant of the fact of the auction-sale, intentionally did not obtain the sale certificate for about three years after the date of the sale and, with the same object in view, omitted to take out execution for the remaining decretal amount, viz., the sum of Rs. 585 and allowed the same to become time barred.