SADHIRAM ATOI Vs. KUNJA BEHARI BANERJEE

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. The facts of the case, shortly stated, are the following: One Sarat Chandra Chowdhury was appointed Sarbarakar in respect of a mouza Bara Khetri in the mon September, 1928. The plaintiff stood surety on behalf of the said Sarat Chandra Chowdhury in respect of the said appointment by executing a security bond whereby he hypothecated certain immoveable properties. The revenue payable for the said mouza was Rs. 26,500 and the plaintiff's properties were taken as being valued at Rs. 28,000 which was the valuation which the plaintiff had put upon the properties.

(2.) Thereafter, there was a proposal to split up mouza Bara Khetri into two parts, one of which was to go by the name of Uttar Bara Khetri and the other Dakhin Bara Khetri. This proposal of the Commissioner was accepted by the Government on 9 November 1928. Thereafter sureties were called for an aggregate amount of Rs. 13,000 for an appointment which was to be made of the said Sarat Chandra Choudhury as Sarbarakar in respect of mouza Uttar Bara Khetri; and one Protap Narayan Dutta having offered himself as a surety he was accepted as such the property offered by him as security being taken as being valued at Rs. 4,600 and the plaintiff was accepted as a surety in respect of the balance of Rs. 8,400. On 29 May 1929 the Sarbarakar defaulted in the payment of the instalment then due. Upon that his moveables were attached, the said moveables being valued at Rs. 3,000; but they were never sold. In the meantime, proclamation being issued for the sale of the hypothecated properties which were covered by the plaintiff's surety-bond, the said properties were sold at auction on 13 August 1929 and were purchased by the defendants at a price of Rs. 6,200. The plaintiff's case further was that he would have taken steps to prevent his hypothecated properties being put up to sale, but he was misled; because he came to know on inquiry that the Sarbarakar had made over the amount for which he was in default to the surety Protap Narayan Dutta, and also because he was under the impression that the moveable of the Sarbarakar which had been already attached would be first put up to sale and that only if such sale failed to fetch the requisite amount that the immoveable properties hypothecated were to be sold. Upon this statement of facts, the plaintiff instituted the suit for a declaration that the sale was improper, and not in accordance with law and that the defendant by his purchase had acquired no title to the properties. In some of the paragraphs of the plaint he complained of several irregularities and illegalities in connexion with the sale and also alleged that the price fetched at it was grossly inadequate. The defendant in his written statement denied that there was any irregularity in connexion with the sale and also pleaded that if there was any irregularity in the conduct of the sale it was the Government which was responsible, and inasmuch as the Government was highly interested in the result of the suit the Government should be made a party thereto. So far as this last-mentioned plea was concerned, it was overruled by the Subordinate Judge. The learned Judge, on dealing with the merits of the case, held that the suit should be dismissed and he ordered accordingly. From this decree dismissing the suit, the plaintiff has preferred this appeal.

(3.) It would be convenient to deal in the first place with some of the illegalities or irregularities complained of on behalf of the plaintiff and to leave out for the present for separate consideration here after one question of irregularity or rather of jurisdiction as the plaintiff desires to make it out to be. Now, those irregularities were of the following description. It was said that there was no attachment in respect of the properties that were sold; and on this point the learned Subordinate Judge held that no attachment was necessary because the properties had already been hypothecated. It was also urged that no notice under Order 21, Rule 66, Civil P. C., was issued and that there was no valuation of the properties mentioned in the sale proclamation. The learned Subordinate Judge found that these two irregularities had been made out and he also found that there had been no beating of drum in connexion with the proclamation. Our attention has also been drawn on behalf of the appellant to another irregularity of which he had made a grievance in his petition of appeal to the Commissioner, and also in his petition to the Local Government, namely, that in the sale proclamation the place where the properties were to be sold was not mentioned. We find that this complaint also is well founded. But the learned Subordinate Judge having found these facts in favour of the plaintiff went on to consider the value of the properties, and after a careful consideration of the materials that are on the record on that question he has come to the conclusion that the price fetched at the sale cannot be regarded as inadequate having regard to the fact that at auction sales anything approaching the market value of property is hardly realized. He has also come to the conclusion that at the sale that took place, a number of bidders were present and that there was nothing to show that any insufficiency in the price, even if there was any, was due to any of the irregularities or even to the cumulative effect of all. We are of opinion that in view of the finding last mentioned, which we find is amply borne out by the materials on the record, it is not possible to say that the plaintiff was entitled to succeed on the ground of any of these irregularities. Furthermore, the learned Subordinate Judge has found that the suit regarded as one of setting aside the sale, was barred under the provisions of Section 80, Sub-section (2) of the Assam Land and Revenue Regulation 1886. It may be mentioned here that the sale took place on 13 August 1929; that thereafter an application was made by the plaintiff to the Commissioner, who by an order passed on 3rd January 1930 declined to set aside the sale; and that thereafter the plaintiff preferred a further appeal to His Excellency the Governor in Council and that appeal was also dismissed. Section 82, Sub-section (2) says: A suit to annul such a sale shall not be entertained upon any ground, unless that ground has been specified in an application made to the Commissioner or Chief Commissioner under Section 79, or unless it is instituted within one year from the date of the sale becoming final under Section 80.