SUBODH CHANDRA MALLICK Vs. AJODHYA HATUI

JUDGEMENT

(1.) This rule was issued calling upon the opposite party to show cause why the order, complained of in the petition, passed by the learned Munsif of Jhargram cancelling a sale and ordering a re-sale of certain property, should not be set aside on the ground that the learned Munsif had no jurisdiction to set aside the sale in exercise of his inherent power under Section 151, Civil P.C. The circumstances are as follows : On 29 November 1937, on the prayer of the judgment-debtor, waiving all objections to the issue of fresh sale proclamation, the case was adjourned to 15 December 1937, for sale. On 15 December 1937, it was similarly adjourned to 15 January 1938 for sale. On 15 January 1938, it was similarly adjourned to 15 February 1938 and on 15 February 1938, it was adjourned to 16 February 1938. On 16 February 1938, a petition was filed by a mortgagee asking permission to deposit provisionally to decretal dues. On this it was ordered: ...Put up on 18 February 1938 with chalan. Inform decree-holder. Let the amount be deposited in Court as prayed for.

(2.) On 18 February 1938, this order was passed : "Money not deposited. Put up for sale at once." Then the sale was held and the Nazir reported that one Subodh Chandra Mullick purchased the property at Rs. 101 and deposited the earnest money. On 19 February 1938 the learned Munsif recorded this order: The sale has already taken place and has been accepted. One, third person, Gopinda Prosad Jana appears with a petition praying for re-sale of the property after the cancellation of the sale already held. Heard pleaders. As the sale has not been confirmed, the Court has ample jurisdiction to set aside the sale or to refuse to confirm the sale : vide Ranhava Chariar V/s. Murugesa Mudali (1923) 10 A.I.R. Mad. 635. On the grounds as set forth in the petition, I think the sale is liable to be set aside. The petition is therefore allowed. Let the property be re-sold on the petitioners paying the earnest money of Rs. 24-4-0 to the A. P. Put up for re-sale on 26 February 1938. Inform the parties through their respective pleaders.

(3.) Thereafter the property was resold and purchased by Govinda Prosad Jana at Rs. 400. The petitioner contends that under the provisions of Order 21, Rule 92 the Court was bound to make an order confirming the sale and had no jurisdiction to set aside the sale, there having been no application under Order 21, Rules 89, 90 and 91. This was not a case in which the Court was entitled to act under Section 151 and to cancel the sale. The petition on which the sale was cancelled sets forth that the petitioner had attended the Court on the 17 and the mortgagee having shown him a deposit chalan he Was under the impression that the decretal dues would be deposited and that there would be no sale on 18 February and was confirmed in this view by the fact that a lot lower in the list was sold on 17 February. In support of his jurisdiction to exercise his inherent powers in this case, the learned Munsif has referred to the case in Ranhava Chariar V/s. Murugesa Mudali (1923) 10 A.I.R. Mad. 635 where it was held that the Court has inherent powers to refuse to confirm an auction sale held under its order if it is satisfied that it has been misled either in giving leave to bid to the decree-holder or in fixing the reserve price and that Order 21, Rule 92 is no bar to the Court exercising its inherent power to refuse to confirm the sale, even though no party applied to cancel the sale. No doubt, the Court has inherent power where there is an abuse of the process of the Court, but the question is whether in the present case there has been any abuse of the process of the Court or whether the Court was misled by the conduct of the parties as in the Madras case. In that case the decree-holder who had applied for leave to bid had failed to disclose the fact that for the property Rs. 36,000 had already been bid in a previous suit and that the Court had refused in that suit to sell for anything less than Rs. 45,000. The learned Judge says that he would certainly have refused leave to bid and would not have fixed so low a a reserve price as Rs. 3000 if he had been placed in possession of the facts. The circumstances of that case are therefore totally different from the facts of the present case. In the present case there is no suggestion that the Court was in any way misled by the conduct of any of the parties. All that can be said in favour of setting aside the sale is that a third party owing to the conduct of another third party was misled and therefore did not attend the auction of the property on 18 February. The case was fixed for 18 February and the parties who wanted to bid would naturally suppose that the order would be passed on the 18 whether for sale or for acceptance of the deposit which was made. If the opposite party wished to obtain the property, he ought to have been present in Court on the 18 when the order for sale was passed on the failure of the mortgagee to make the deposit. Had the application for setting aside the sale been made by the judgment-debtor on the ground that there was no proper notice of the sale or that the public were misled into thinking that there would be no sale on the 18 there would have been some ground for the order setting aside the sale.