GAYA PRASAD SINGH Vs. PARICHHAN SAHU

JUDGEMENT

(1.) The petitioners were the sixteen annas landlords of an occupancy holding of 4 bighas 18 kathas. About half of this holding was given in usufructuary mortgage by the tenants on 4 June 1929, to the opposite party. In 1931 the petitioner obtained a rent decree on 14 May, for the rent of the holding. The decree was put into execution and the holding sold on 7 March 1934. The petitioners themselves purchased the holding and according to the record, delivery of possession was given to them on 7 July 1934. On 17 November 1934, the tenant-judgment-debtors applied under Order 21, Section 90, Civil P.C, to set aside the sale alleging suppression of processes and fraud by which they were kept in ignorance of the proceedings until 27 October 1934. The application was contested and after a hearing in which the usufructuary mortgagee, Parichhan gave evidence on behalf of the tenants-applicants, was dismissed on 3 May 1935. The tenants did not appeal. The usufructuary mortgagees of half the holding who are now the opposite party, thereafter on 15 May 1935, presented their application under Order 21, Rule 90, to have the sale set aside alleging suppression of the processes, irregularity leading to under-valuation and sale at an inadequate price and fraud by which they were kept in ignorance of the proceedings until 21 April 1935, when Parichhan received summons to appear as witness in the application which had been presented by the judgment-debtors. The Munsif allowed the application and set aside the entire sale.

(2.) On appeal the District Judge affirmed his decision. The District Judge's findings were that the property had fetched less than its real value, that the processes had not been properly served, that fraud did not need to be proved but might be presumed and that the Munsif was justified in believing that the usufructuary mortgagees were kept in ignorance through fraud. There is no finding here that the alleged usufructuary mortgagees had suffered any loss through the sale of the property. The decree-holders opposite parties had contended that the alleged usufructuary mortgagees were in fact merely farzidars on behalf of the tenant-judgment-debtor. But the Munsif had said that the question whether the bharna was farzi or not could not be gone into in this case. The other findings of the Munsif were that the sale price was inadequate, that the processes were fraudulently suppressed and that "it is no wonder if the applicant came to know of the sale on receiving summons in Balgobind's case". He infers ignorance of the appellants from the fact of their not depositing the decretal amount. In review it is contended that the Courts should have placed the burden of proof of non-service on the applicants and not the burden of proof of service on the decree-holders, that the Courts have erred in law in presuming fraud which is a matter that ought to be alleged not generally but with particulars and fully proved, and it is said that the finding that the applicants remained in ignorance till the date stated by them is, in the circumstances, perverse. On the other hand, it is pointed out for the opposite party that in a proceeding in revision under Section 115, Civil P.C., the High Court can only interfere where there has been an error affecting jurisdiction or an irregular exercise of jurisdiction. Therefore, I do not think I can interfere with the orders of the Court below on the ground that the findings of fact are perverse or the view of law erroneous. But the Courts below have lost sight of the Proviso to Order 21, Rule 90: No sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3.) If, as the petitioners contend, the applicants who allege themselves to be mortgagees were mere farzidars of the judgment-debtor, then several consequences would follow: one for instance, would be that as the questions of fraud, suppression of processes, etc., have already been tried out between the decree-holders and the judgment-debtor, the applicants being merely nominees of the judgment-debtor are debarred from prosecuting this application by the principle of res judicata. Another would be that they not having a genuine substantial interest in the property could not have sustained substantial injury. It was for them to show, in the first place, that the bharna transaction in its inception was a genuine transaction for consideration and I observe that the attesting witness who was called by the applicants to prove the bharna, said nothing in support of the passing of consideration for it. The applicants do not appear to have offered the Court any evidence as to where they got the money to pay the consideration for the usufructuary mortgage. The Courts below have not come to any finding whether the applicants were in possession of the mortgaged property. It is noticeable that the applicants did not produce the original deed from their custody but instead came with an excuse, that it had been destroyed. In these circumstances, I am clear that there has been an error of jurisdiction in setting aside the sale contrary to the express provision of law without determining whether the applicants have sustained substantial injury. The judgment of the District Judge is set aside, the appeal must be re-heard de novo and it will be within his discretion to permit the parties to adduce further evidence on the question whether the applicants have sustained substantial injury but not on the other issues. Costs--hearing-fee two gold mohurs will abide the result.