SUNDERABAI Vs. BAPUNA

JUDGEMENT

(1.) IN this case the judgment-debtor applies for revision of an order rejecting her petition for review of the order confirming an auction-sale held on 3rd May 1926, at which the non-applicant Parashram was declared to be the auction-purchaser. This revision raises somewhat intricate questions which have not received due attention and treatment at the hands of the lower Court. I think the auction-sale held in this case should ' have been treated as void and the application granted. It is consequently necessary for me to deal with the matter involved in the case at some length in this order.

(2.) BAPU , son of Suryabhan, patel of Kaul-kheda, the client of the auction-purchaser's natural father Mr. Sunderlal Agarwal, pleader, Akola, obtaiqed a money decree dated 6th February 1925, for Rs. 240 and costs against the present applicant Sunderabai in Suit No. 2985 of 1924 on the file of the Small Cause Court Akola. That Court sent a certificate of non-satisfaction dated 25th July 1925, to the Court of the Subordinate Judge, Second Class, No.2 of Akola, for execution of the decree against the immovable property of the judgment-debtor. In due course, that is, on 16th September 1925, the decree-holder through his pleader Mr. Sunderlal applied for execution of the decree for recovering Rs. 281-2-0 by attachment and sale of the judgment-debtor's field Survey No. 26, area 23 acres and 29 gunihas, revenue Rs. 32 situate in mauza Kaulkheda. The aforesaid pleader acted all along on behalf of the decree-holder and did all the appearances, applications and acts which he would have been required to make, had he personally conducted the proceedings in the executing Court. On 21st September 1925, Mr. Sunderlal obtained an order for the attachment which took place on 8th October 1925, which was before the date of the hearing fixed for 24th October 1925. At this hearing again the decree-holder was represented by the said pleader, and the Court passed the order "sale notice be issued on decree-holder's sale application," and fixed the case for 28th November 1925.

(3.) IN the presence of the said pleader the Judge at once proceeded to enquire from the Nazir the date to be fixed for the sale of the property, and fixed 5th December 1925, for the receipt of the information. Even on 28th November 1925, t.he learned pleader did not care to put in the application and the verified statement. On 3rd Dacember 1925, a memo, to be found at record p. 17, was sent to the Nazir asking him to propose a date for sale. The Nazir suggested 1st March 1926 for the sale at Akola. On 5th December 1925 also the application and verified statement was still unfiled. In spite of their absence the executing Court ordered the sale of the field to take place on 1st March 1926, at Akola and fixed the 6th March 1926 as the date for submission of the report and directed "sale warrant and proclamation" to be issued. The decree-holder's pleader was present at the hearing to know that the process fee was ordered to be paid in three days, but no process fee being paid no sale could be held. Mr. Sunderlal's explanation given at the hearing dated 6th March 1926 was to the effect that the process 'was by oversight paid elsewhere." Even at this hearing neither the pleader nor the Presiding Offieer of the Court cared to see, before giving a fresh date for sale and ascertaining it from the Nazir whether the prescribed application and statement were filed with the record. The' case, was, however, adjourned to 13th March 1926, to await the fixation of the date of sale afresh by the Nazir. A memo, dated 10th March 1926, record p. 18, was sent to the Nazir who returned it with a note that the proposed 3rd May 1926, "at Akola before the Court" was the date for holding the sale. On 13th March 1926, the Judge, in the presence of Mr Sunderlal, fixed 3rd May 1926, as the date for holding the sale at Akola, and 19th June 1926 for a report and ordered "sale proclamation to issue." Even on this day the aforesaid application and statement had not come on the record.