RAJA SHYAM SUNDER SINGH Vs. KALURAM AGARWALA

JUDGEMENT

(1.) Appellant 1 whose property has been sold in execution, and the other two appellants, who are receivers in charge of his properties, appeal in an application by them under O.21, R. 90, Civil P. C., to have the execution sale set aside, against the decree of the High Court of Judicature at Patna dated 27 November 1935, which confirmed the sale, setting aside the order of the Subordinate Judge of Dhanbad dated 18 September 1933, which had set the sale aside. Under Rule 90 it is necessary, in order to have the sale set aside to prove (a) material irregularity or fraud in publishing or conducting the sale, and (b) that the applicant has sustained substantial injury by reason of such irregularity or fraud. Respondent 3 is the representative of his father, who obtained an ex parte decree dated 31 July 1931, in the High Court of Judicature at Fort William in Bengal against appellant 1 for the payment of Rs. 38,392-4-8, which was transferred to the Court of the Subordinate Judge of Dhanbad for execution, application being there made by the decree-holder on 23 September 1931, for execution by attachment and sale of two of the said appellant's properties. The Subordinate Judge states the subsequent proceedings as follows:

(2.) The first property as described in the execution petition is Pandra 1 Kismat, touzi No. 21 of Manbhum Collectorate, pargana Pandra, the total land revenue payable being Rs. 107-2-6? and the local cess payable for the property being Rupees 4184-10-0. The other property is Pandra 3 Kismat, touzi No. 23 of Manbhum Collectorate, pargana Pandra, and the total land revenue payable in respect of it was Rs. 53-10-8 and the total cess payable was Rs. 1621-14- 6. The decree-holder did not give any value of the properties in his execution petition. The first process issued in the case was the process of attachment in respect of both the touzi which purports to have been served on 28 November 1931. Thereafter a notice under O.21, R.66, Civil P.C., was issued and served on the judgment-debtor. The judgment-debtor appeared on 8 January 1932, and took time to file objection regarding valuation. On 15th January 1932, he filed an objection alleging the value of touzi No. 21 to be 15 lacs and that of touzi No. 23 to be 10 lacs; on 23 January 1932, when the Court proceeded to enquire about the valuation of the property the decree-holder's pleader stated that he had no objection to the judgment-debtor's valuation being accepted without prejudice. The Court ordered the sale proclamation to be issued inserting the judgment-debtor's valuation. There was a miscellaneous appeal against that judgment by the judgment-debtor, and the sale of the property, which was to take place on 15 March 1932, was stayed by order of the Honourable High Court. On 16 March 1932, the aforesaid civil revision case was disposed of, and the order of this Court regarding valuation was set aside and the Court was directed to decide the question of valuation on the evidence. Thereafter on 2 May, 1932, there was an enquiry by this Court, and the Court valued touzi No. 23, which the decree-holder wanted to sell, at 2 lacs, and the sale proclamation in respect of that Touzi was issued, fixing 15 June 1932, for sale. That sale proclamation was not served for want of identifier, and on decree-holder's petition filed on 25 May 1982, a fresh sale proclamation was issued in respect of touzi No. 23 fixing 15 July 1932 for sale at noon. On that date the judgment-debtor applied for one month's time to pay up the decretal amount waiving the right to issue a fresh sale proclamation. Time was allowed and the sale was adjourned to 15 August 1932 at noon.

(3.) It is unnecessary to detail the subsequent proceedings, as the appellants now raise no separate point as to them; it is sufficient to state that the judgment-debtor obtained three further adjournments of the sale date on petitions in similar terms to that of 15 July 1932, the date of sale being ultimately fixed for 27 September 1932. A similar petition by the judgment-debtor on this last date was rejected, and the sale took place on 27 September and the property was purchased by respondents 1 and 2 for Rs.60,000, It may be added that on 20 August 1932, the judgment-debtor had paid Rs. 5000 towards the decretal amount. The only case of fraud alleged in the plaint was found to be untrue by the Subordinate Judge, and the appellants acquiesced in that decision. The case now rests solely on irregularities in publishing and conducting the sale. The Subordinate Judge found that certain material irregularities had occurred in publishing and conducting the sale, with the result that the property was sold for the small sum of Rs. 60,000, though it was valued at over three lacs of rupees, and that appellant 1 had thereby suffered substantial loss. The learned Judge rejected the respondents contention, referred to later, that the said appellant had waived any objection to these irregularities, and as already stated, he set aside the sale. On appeal by the present respondents, the High Court reversed this decision and confirmed the sale, on the ground that in his petition of 15 July 1932, the judgment-debtor had stated that the sale proclamation had been properly served, and that if time were granted he would not insist on the issue of a fresh proclamation, that time was granted on that and three subsequent occasions, always on the same condition and that, apart from fraud, his only case on which had been rejected by the Subordinate Judge, the judgment-debtor had waived any right to object to the irregularities found by the Subordinate Judge. The learned Judges, holding this view, did not discuss the correctness of the Subordinate Judge's findings as to the irregularities, but on the question of substantial injury to the applicant they stated;