DEONANDAN THAKUR Vs. MTHANSO KUER

JUDGEMENT

(1.) These two applications Nos. 93 and 100 of 1936, arise out of two execution cases, Nos. 561 and 560 of 1934 respectively. It appears that some properties were sold in execution of a rent decree and were purchased by the petitioner on 3 October 1934. The opposite party put in petitions against those sales under Order 21, Rule 90 on the ground that the sales were brought about by fraud in publishing and conducting the sales and also on account of certain material irregularities. The first Court dismissed the applications on the ground that the irregularities and the fraud complained of were not established by the opposite party. In fact he went so far as to hold, that all these obstructions were being raised by the mortgagee in possession and not by the lady in whose name the property actually stood. The judgment-debtor went in appeal to the District Judge of Muzaffarpur and he has held that inasmuch as the sale was notified to be held on 1 October 1934, but actually the sale was not held till the 3 October, he seemed to think that the provisions of law were not complied with and therefore the sale should be set aside and the application under Order 21, Rule 90 allowed. He also referred to another matter and that was the inadequacy of the price fetched and from this he infers that if the property had been correctly valued in the sale proclamation, it would have perhaps fetched a better price. Mr. Mitter appearing on behalf of the petitioner, who happens to be the auction-purchaser, urges that the learned District Judge has gone wrong in holding that the holding of a sale on the 3 October was illegal or that it amounted to material irregularity so as to entitle him to set aside the sale altogether simply because the sale was advertised for the 1 October and it was held on the 3 October. He has drawn my attention to Rules 14 and 15, High Court General Rules and Circular Orders, Civil, Vol. 1, Part 1, Ch. 6, dealing with execution of decrees. Rule 14 runs as follows: All property, except property of the nature specified in the proviso to O.21, Rule 43 of the Code or Rule 18 of this Chapter, to be sold at each place of sale shall be entered in lists for each place, the lists of moveable and immoveable properties being distinct. The lists shall be so prepared as to contain in regular order each item of property to-be sold in execution of the decrees of each Court severally. Such lists shall be stuck up in the Courts where the sales are to be held, in the case of moveables not less than seven days, and in the case of immoveables not less than 15 days, before the date fixed for the commencement of each set of sales.

(2.) Rule 15 runs as follows: At the stated hour upon each fixed date the sales shall be commenced, and shall be carried on in the order stated in the lists above mentioned. No sale shall continue after sunset; but the sales shall be held from day to day, except when the Court is closed and until the lists are finished: Provided that this rule shall not interfere with the adjournment of any particular sale according to law.

(3.) The learned Judge seems to be under the impression that simply because a sale does not take place on the date for which it is advertised, the sale becomes a nullity or the sale becomes illegal. It is best to quote from his judgment and show to what extent he has been influenced in his decision by not referring to the two rules which I have just now quoted. After holding that it was not shown that any fraud had been practised regarding the publication of notices or regarding the proclamation or the conduct of the sale, he proceeds to consider another objection of the lawyer appearing on behalf of the opposite party who was the appellant before him: He says: But appellant's lawyer contends that there was a material irregularity in the conduct of the sales. The sales were advertised to take place on 1 October, 1934, but actually they were not held till 3 October. It does not appear from the record that any notice was given to the parties or to the public that the sales would be held on that particular day. The lawyer appearing for the auction purchaser informs me that there are so many sales in the first Munsif's Court that they cannot all be held on one day and they are held de die in diem until they are finished. If there are a large number of sales to be held, it may be impossible to hold them all in one day; but in that case they should be divided into suitable batches and a day fixed for holding the sales of each batch. Then this arrangement should be notified to the parties and to the general public by making notes on the order sheets of the execution cases. With the aid of a suitable rubber-stamp such orders could be prepared and initialed in a short time. Order 21, Rule 69 requires that if any sale is adjourned it must be adjourned to a specified date and hour and the reason for the adjournment must be recorded. It does not appear that the requirements of Order 21, Rule 69 have been followed in these two cases.