MAHOMED ABDULLA Vs. SAKHARAM HABAJI MISTRY

JUDGEMENT

(1.) This is an appeal from the order of the First Class Subordinate Judge, Thana, dismissing the appellant's application under Order XXI, Rule 90, to set aside an execution sale. There were disputes between the plaintiff and several defendants including the appellant about certain money dealings. These disputes were submitted to arbitration and an award was made which directed that the defendants should make certain payments on certain dates and that in default of those payments certain immovable property of, the defendants was to be put to sale. The award was filed in Court and a decree was passed in terms thereof. The date of the decree was October 30, 1918. There were various darkhasts with which we are not concerned, and finally on September 23, 1926, the plaintiff applied that the property should be sold-the defendants not having paid the money due in accordance with the decree. Notice was issued to the appellant but he failed to appear. Accordingly, some of the property, consisting of some salt pans, was sold on March 30, 1927, and other property, consisting of lands, was sold on March 31, 1927. There was one bidder for the salt pans, no bidders for the land. In accordance with the rules the final bids were taken in Court on April 5, 1927, but the Court did riot accept the bids. On April 7, the plaintiff applied for permission to bid himself. His bids amounted to Rs. 5,280 for the salt pans and Rs. 800 and Rs. 500 for the lands. These bids were accepted.

(2.) On April 12, 1927, the defendant applied for setting aside the sale. He then alleged that he was an agriculturist, and the first point urged in support of the appeal is that as he was an agriculturist (and the trial Court on the strength of the affidavits put in by him has held that he was,) therefore, the Court had no jurisdiction to sell the property but should have transferred the execution of the decree to the Collector in accordance with the rules of Government for dealing with the property of agriculturists. The difficulty is, however, that the defendant was described in the decree not as an agriculturist but as a trader. It has been stated that he put forward his agricultural status at an early stage in the execution proceedings, but there is no evidence of this. As already stated he failed to appear in answer to the notice about the sale, and so far as the record shows it was not until after the sale had been completed that he came to Court and claimed to be an agriculturist. For that reason the trial Judge held that his plea of status was at that stage inadmissible. He has relied upon the ruling reported in Behari Singh v. Mukat Singh (1905) I.L.R. 28 All. 273. That was a case in which the facts were somewhat different, because there had been an inquiry held by the Court as to the nature of the property, as affecting the sale procedure, which in the present case had not been made. But the learned Judges who decided that case referred to a decision of the Privy Council in T.R. Arunachellam Chetti V/s. V.R.R.M.A.R. Arunachellam Chetti (1888) L.R. 15 I.A. 171, and that, it appears to us, is entirely in point. The remarks of their Lordships of the Privy Council referred to were (p. 174): The judgment-debtors knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olpherts V/s. Mahabir Pershad Singh (1882) L.R. 10 I.A. 25, that if there was really aground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated.

(3.) That appears to us to be precisely the position in the present case, and as regards this point, therefore, we agree with the trial Court.