TAIMUDDI BEPARI Vs. SHEIKH LAKPAT BEPARI

JUDGEMENT

(1.) THIS is an appeal against the order of the Subordinate Judge, Second Court, Dacca, dated 29th June 1915, refusing an application under Order XXI, Rule 90 of the Code of Civil Procedure for setting aside the sale of certain properties of the appellants in execution of a decree obtained against them by the respondents. The contention of the appellants is that property worth over Rs. 17,000 has been bought by the decree-holder respondent for Rs. 4,950 and that this inadequacy of price is due to material irregularity in conducting the sale. Before the lower Court it was sought to prove that there had been no publication of the sale proclamation but this point was not pressed before us. As regards the other point that was taken in the lower Court it is conceded by the learned Pleader for the respondent that the omission of the Court to specify the hour of sale, when the sale was adjourned, amounted to an irregularity, but he supports the decision on the ground that the price was not inadequate. The evidence has been read to us and we see no reason to differ from the finding of the learned Subordinate Judge that the oral evidence as to the value of the properties sold, is not reliable. The question whether the properties are subject to a valid mortgage is a point in dispute between the parties that has not been decided in these proceedings but, whether the judgment-debtor s assertion that the properties are not mortgaged be true or not, the fact that such an assertion had been made, would discourage intending purchasers. On the evidence we are, therefore, unable to hold that the price fetched is inadequate but, even if we held to the contrary, the appeal would still fail on the ground that the only irregularity proved, did not result in the injury suffered in that view by the appellants. The present case resembles that of Mahabir Pershad Singh v. DKanttk-dhari Singh 8 C.W.N. 686 : 31 C. 815, and after considering the circumstances and facts of the present case we are of opinion, as the learned Judges were in that case, that there is nothing to warrant the necessary, or at least reasonable, inference that the inadequacy of price, if there were any, was the result of the admitted irregularity. The learned Pleader for the respondent undertakes that if the sale stands, his client will enter full satisfaction of the decree in execution of which the property was sold.

(2.) WE accordingly dismiss this appeal but under all the circumstances without costs.