S. R. VAIDYA Vs. ABDUL SAMAD

JUDGEMENT

(1.) THE facts of this case are so far clear from the lower Court's. order. Various grounds have been put forth in the petition of appeal, but only two have in reality been pressed. The first of these is that the omission of the decree-holder to file a verified statement required under Order 21, Rule 66 Civil, P.C., amounted to an illegality which vitiated the sale. I do not think the said omission can properly be described as an illegality. It was, at the most, an irregularity and it was incumbent on the appellant to show that he was prejudiced substantially by the said irregularity : cf. Nasir-un-Nissa v. Ghafur-ud-Din [1905] 28 All. 244.

(2.) GROUND 2 of the petition of appeal does not admit of discussion. The matter was set at rest by the order of Kotval, O.J.C., dated 18th September 1926, in Civil Revision No. 299 of 1926. What, however, does seem to me fatal in the circumstances of the case to the order of the lower Court is the fact that, in the sale proclamation, mauza Isapur was expressly mentioned as subject to a mortgage of Rs. 30,000. Now, admittedly the facts are that the mortgage in question, which dates from the year 1922, was not only of mouza Isapur tout of another village Gangnala as well. It is no doubt true that the mortgagee is entitled to enforce his debt against any other village, but the fact still remains that, if one village is described as subject to a mortgage of a certain amount, while, in reality another village is also included in the mortgage, the price obtained at such an auction-sale for the first village will inevitably be less, if it is shown as solely subject to the mortgage in question. It is true that, even so, it was incumbent on the appellant to show that he suffered substantial loss by reason of the wrong description in question, but in a case like the present it is hot easy to see what specific evidence of substantial loss parties in the position of the appellant could in ordinary circumstances produce. In view of the rental collections of the village, which amount to about Rs. 2,000 per year, the price obtained seems prima facie a highly inadequate one, even if allowance is made for the encumbrance on the property. It is true that the judgment-debtor did not prove his allegation that only Rs. 9,500 was due on the mortgage, but equally so it is not clear that Rs. 30,000 could have been due on the date of the sale.

(3.) IN argument it has been suggested on behalf of the respondents that a peculiar duty lay on the judgment-debtor of attending and assisting the Court as regards the correctness or otherwise of the particulars included in the proclamation. I have been referred to the decision of Mahadeo Singh v. Dhobi Singh A.I.R. 1924 Pat. 111, but thefacts of that case were somewhat dissimilar, and in the present case it is perfectly obvious that the decree-holder did riot fully comply with the duty which rested on him of giving along with the judgment-debtor, if necessary, the particulars required under Rule 66, Sub-rule (2), Order 21, Civil P.C. The finding, I may add, of the lower Court as to the amount of loss suffered by the judgment-debtor in this connexion is far from satisfactory. In para. 16, of his judgment, the Subordinate Judge holds that the auction price of Rs. 7,000, which was obtained "is not proved to be very small or inadequate." In para. 19 he holds that it is likely that the judgment-debtor has been put to some actual loss on account of the decree-holder's default in not ascertaining from the mortgagee the amount due on his mortgage. Neither finding is satisfactory. What the lower Court had to determine was whether any substantial loss or injury had been caused to the judgment-debtor. When, in addition to the facts referred to by the lower, Court, we also consider the all-important fact of the mortgage being described as an encumbrance only on the one village (mauza Isapur), I am of opinion that the only reasonable inference from the evidence on record is that the sale occurred under circumstances which caused substantial injury to the appellant and that the decree-holder was mainly responsible for these circumstances.