SATISH CHANDRA MUKHERJEE Vs. PORTER

JUDGEMENT

(1.) This appeal arises out of an order of the Additional District Judge of Alipore setting aside a sale in execution of a decree under the provisions of Secs.244 and 311 of the Civil Procedure Code. The judgment-debtor in his application stated that there had been no attachment of the property sold, that the decree-holder fraudulently and dishonestly caused the suppression of the service of the sale-proclamation on the property sold and that no sale- proclamation was ever served on the property and that the decree; holder, who was the auction-purchaser, with fraudulent intention, under-estimated the value of the property and purposely abstained, with a view to cause wrongful loss to the petitioner and wrongful gain to himself, from mentioning the share of the petitioner in the property sold. These are the only allegations of fraud. The petitioner, however, went on to say that "On account of non- publication of the sale, there were no bona fide bidders at all and although your petitioner's co-sharer Mrs. Evennett was present on the first day of the sale, and she and the decree- holder bid against each other on the second day she desisted from bidding any further, and the petitioner believes that she was dissuaded by the decree holder from bidding any further." In consequence of all these circumstances it was alleged that the property had been sold at a grossly inadequate price.

(2.) The lower Court has found on the evidence and we agree with that finding that there is no reason to suppose that the attachment of the property and service of the sale proclamation were not duly made. The property in question is a leasehold of some 17 bighas situated at some distance from Ballygunge in a lonely and jungly locality and belonged to the judgment- debtor and Mrs. Evennett, who carried on a farming business upon it. The judgment-debtor had erected building's upon the property and had expended a considerable amount of money in so doing. The decree-holder's decree at the time of the application for sale amounted to Us. 5,697-7-9 pies. The money was due for materials supplied to the judgment-debtor for the erection of some of these farm buildings. There were other decrees also outstanding on similar accounts. The lease had two years to run at a monthly rental of Rs. 50 with the stipulation that, if the rent was not paid for two months, the lease should terminate; and there was a clause in it under which the lessees had the option to buy the property for Rs. 15,000, and if they failed to exercise this option, the buildings that had been erected would become the property of the lessor. It appears that Rs. 15,000 was not a cheap price for this piece of land, which, from its locality and nature, is unsuitable for anything but farming purposes, which had not in the past proved very successful. It is not easy therefore to estimate the market value of the judgment-debtor's share in the lease. On the first day of the sale it appears that Mrs. Evennett made a bid of Rs. 5,630. This was the highest bid on that occasion. It was, however, not accepted and the property was put up again the next day, when it was knocked down to the decree-holder for Rs. 5,685.

(3.) Mrs. Evennett, in her evidence, stated that she came intending to bid on the second day and was ready to bid up to Rs. 6,000, thai she did not do so because the decree-holder's pleader asked her not to bid, and an agreement was come to between them that the decree- holder should sell her the property for the amount of his decree, and that, relying on this assurance of the decree-holder's pleader, she did not bid. She admitted in her cross examination that she thought that the decree-holder wanted to bid up to his claim. He told her that he would settle it for less with her; he said he would be reasonable and so she asked him to let her pleader know the lowest amount he would take and to write to her on the subject. That was before the sale on the second day. She thought the decree was for Rs. 5,830; it was not over Rs. 6,000. She further stated that she offered the decree-holder Rs. 3,000 after the sale. The decree-holder himself also gave evidence. He denies that he had any talk with Mrs. Evennett before the sale. He says "After the sale was over, Mrs. Evennett asked me whether I could return to her the property sold. I said I could return it, if the decretal amount was paid to me. I said I could return it, if I got Rs. 5,700 decreed by this Court and nearly Rs. 140--the costs of the High Court." This is all the material evidence as to what happened.