HEM CHANDRA DATTA Vs. UMA SADHAN MUKHOPADHYA

JUDGEMENT

(1.) This appeal has bean preferred from an order passed by the Additional District Judge of Howrah in an insolvency case, by which the learned Judge has refused to set aside sale of a property which is alleged to belong to the insolvent, and he has directed the purchaser to deposit the purchase money in full within a week, failing which he has ordered the amount of deposit to be forfeited. The property in question is said to be a garden, consisting of 28 bighas of land including some paddy lands with a brickbuilt house standing thereon. It was under a mortgage in favour of one Mul Chand Baisya whose dues have coma up to about Rs. 30,000, the principal amount secured by the mortgage being Rs. 15,000. It was put up to sale free from all incumbrances and the appellants purchased the same at the auction for Rs. 15,050 being the highest bidder therein. They deposited 25 per cent, of the bid, i.e., Rs. 3,672-8. The contesting respondent in the appeal is the mortgagee Mul Chand Baisya. The receiver has supported the appellant in this appeal.

(2.) The auction sale was held on the 27 September 1926. On the 7 October 1926, the first application to set aside the sale was filed; it was based on the ground that there was a gross misrepresentation or misdescription in the handbills that were issued as in them the property was said to be a "big garden" 27 1/2 bighas in area, while in point of fact about 20 bighas out of the land was paddy land. Another petition was filed later on the 21 November 1926, in which it was complained that the title deeds of the property had not been made available for the inspection of intending purchasers, that the price of the property was much less, that it was not disclosed that litigation was pending in respect of the insolvent's title to the property and that there were no specifications as regards the real character of the insolvent's rights in the property. The receiver who was asked to report submitted his report on the 4 December 1926, into the details of which it is not necessary to enter. Shortly stated, it recommended an order for the setting aside of the sale.

(3.) The learned Judge has refused to set aside the sale and has parsed the order to which we have referred. Several objections in the nature of objections in limini have been urged on behalf of the contesting respondent. The first is to the effect that the purchase was made by 3 persons jointly, while the application for setting aside the sale filed on the 7 October 1926, was on behalf of only one of them, namely, Nitai Chand Addy and on the basis of that application the proceedings were not competent. The real position is that Nitai Chand Addy bid at the sale. He disclosed that he was making the purchase on behalf of himself and the other two. He made the deposit, and it may also be mentioned that all the three parsons are the appellants in this appeal. This objection, in oar opinion, has no substance.