JATINDRA MOHAN SARKAR Vs. MAHIPAL NAYEK

JUDGEMENT

(1.) In execution of a mortgage-decree the properties mortgaged by the appellant were sold on 13 February 1939. Some of them were purchased by the decree-holder and the rest by strangera. The price fetched at that sale, however, did not cover the decretal amount with the result that the mortgagee obtained on 24 April 1940 a personal decree for Rs. 7198 under Order 34, Rule 6, Civil P.C. In execution of this decree eighteen items of the mortgagor's other properties were ultimately put up to sale on 17 January 1941 by the Subordinate Judge who had passed the personal decree in the mortgage suit. One lot was not sold, five were purchased by the decree-holder respondent and the remaining lots were purchased by the other respondents in the appeal who are strangers. The sale was confirmed on 30 January 1942. The legality of the sale of the seventeen lots sold on 17 January 1941 in execution of the said personal decree is the question to be decided in this appeal. The application of the judgment debtor in which the sale has been attacked was filed as late as 18 June 1943. The challenged sale was held on a sale proclamation issued on 21 August 1940, that is to say ten days before the Bengal Moneylenders Act 1940, had come into operation. By that proclamation the sale was fixed for 12 November 1940.

(2.) Soon after the Bengal Honey-lenders Act had come into force the judgment-debtor made an application to the Subordinate Judge under Section 36 of that Act for relief. In that application he prayed inter alia for reopening the decrees passed against him. During the pendency of that miscellaneous case started on this application he applied for postponement of the sale from time to time, at first unconditionally waiving publication of fresh sale proclamation in respect of the sale adjourned from 12 November to 29 November and from 29 November to 16 December 1940. On 16 December 1940 he again applied for postponement of the sale waiving the publication of a fresh sale proclamation but this time subject to the condition that waiver would be valid only if he did not get relief in the proceedings started by him under the Bengal Money-lenders Act. His prayer was allowed and the sale was postponed to 14 January 1941.

(3.) His application under Section 36, Moneylenders Act, was dismissed by the Subordinate Judge on 4 January 1941. On the very date fixed for the sale the judgment-debtor applied for adjournment of the sale on the ground that he intended to appeal to this Court against the order rejecting his application for relief under the Money-lenders Act; and to bring an order from the appellate Court staying the sale. This application for postponement of the sale was opposed at once by the decree-holder. It was, however, not disposed of on 14 January 1941 and was ordered to be put up for consideration to the following day. The Subordinate Judge at the same time postponed the sale to the next day. On the next day the 15 January, the judgment-debtor's application for postponement of the sale was refused and the properties were put up to sale on the next day, that is to say, on 16 January 1941 on the basis of the sale proclamamation which had been issued on 21 August 1940. They were actually sold on 17 January 1941.