TARNI PRASAD SINGH Vs. CHANDRESHWAR PRASAD NARAYAN SINGH

JUDGEMENT

(1.) These two civil revisions arise out of an execution case filed by the opposite party against the petitioners in the Court of the Second Munsif of Gaya. Certain properties were sold for the sum of Rs. 1,950, being the decretal amount, and the petitioners applied under Order 21, Rule 90 for setting aside the sale. Their case is that there was then a talk of compromise and that at the hearing of the miscellaneous case the decree-holder through his karpardaz agreed to accept the decretal amount if paid within two or three days. Two days later the decretal dues were deposited and the Munsif set aside the sale on full satisfaction. On appeal to the District Judge this order was set aside and the case was remanded for disposal of the application for setting aside the sale on its merits. The Munsif then proceeded to set aside the sale, but on appeal the District Judge restored the sale. The petitioners have applied to this Court against both these orders of the District Judge.

(2.) It was pointed out for the petitioners that there are errors in the order of the learned District Judge restoring the sale, for instance, the learned District Judge was under the impression that as the judgment-debtors did not appear on service of the notice under Order 21, Rule 66 they were no longer entitled to dispute the valuation of the property sold which was their main objection to the sale. It is true that the judgment-debtors were no longer entitled to object to the under-valuation as an irregularity in the procedure; but- it was still open to them to plead that as a result of the under-valuation the property had been sold for an inadequate price and they had thereby suffered material injury. These matters however need not be gone into further if it is found that the petitioners did satisfy the decree by depositing the decretal dues in the executing Court. On this point the learned Munsif's order shows that he relied on the statement of the decree-holder's own karpardaz to the effect that the decree-holder would accept the payment if made within two or three days. The witness went on to say that if the judgment-debtors required one month's time for payment he would then have to consult his master. He had already stated that he himself was in charge of the decree-holder's cases. The decree-holder then examined another witness and on the same day, being 23 February 1935, the judgment-debtor applied for three days time for making the deposit, and the order sheet shows thrift the Munsif postponed judgment on that account till the 27th. On the 25 the deposit was made and on the 27 the Munsif set aside the sale on full satisfaction. When dealing with this matter the learned District Judge appears to have acted with material irregularity in assuming that the decree-holder's karpardaz had no authority to accept the deposit. If the District Judge was not satisfied on this point his proper course was to have ordered a further inquiry on the basis of which a final order could have been passed, and for this reason I am unable to uphold his order. I do not however think it necessary further to prolong these proceedings, which have already been much delayed, as I consider that the circumstances justify the conclusion that the karpardaz had authority to accept the deposit. The karpardaz did accept the offer on the decree-holder's behalf, and no objection was raised for the decree-holder even when the Munsif granted an adjournment for enabling the judgment-debtors to satisfy the decree. It is noticeable that the judgment-debtors own witness was asked in cross-examination whether or not the judgment-debtors were able to make immediate payment. It was not till the 26 March that an appeal was filed to the District Judge challenging the authority of the karpardaz. We are informed that the petitioners are still anxious to satisfy the decree, and I would direct that if the amount deposited in the lower Court be re-deposited in this Court within the course of the day, the sale will be set aside on full satisfaction of the decree. The parties will bear their own costs in this Court. Fazl Ali, J.

(3.) I agree. These applications are directed against two orders of the learned District Judge which were passed on 31 October 1935 and 11 August 1936 respectively. The second order is attacked on behalf of the petitioners on the ground that the learned District Judge has committed mistakes of law as well as of facts. The mistakes of law said to have been committed by him are: (1) that he has misinterpreted certain decisions of this Court and held that because the petitioners did not appear to object to the valuation of the property in question in answer to the notice under Order 21, Rule 66, they are not entitled to raise the question of valuation now, and (2) that he has proceeded on the view that the reports of the peon as to the service of the execution processes are public documents and prove themselves without the examination of the peons. The mistake of fact is said to constitute in this that the learned District Judge has confused the cess re-valuation which is made by a Revenue Officer with the cess- return which is submitted by the landlord and he has decided the case on the basis that the figures furnished by the appellants in order to enable the Court to determine the value of the property were based on cess return. These criticisms are not without substance and if it had been open to us to go into the facts of the case, it would have been difficult to uphold the order of the learned District Judge. The matter however need not be pursued, because, as my learned brother has pointed out, the first order passed by the learned District. Judge cannot be upheld, and if that order is to be vacated the proceedings which followed in the Courts below upon the basis of that order must be ignored. Now the point which requires attention in connexion with the first order of the learned District Judge has been stated to us as follows: