FATEH CHAND MAHESRI Vs. AKIMUDDIN CHOUDHURY

JUDGEMENT

(1.) These appeals by the decree-holder auction-purchaser are directed against the order of the learned Subordinate Judge of Jalpaiguri dated 2 December, 1938 by which he has set aside the sale. The appellant sued his mortgagor and the puisne mortgagee. He got the preliminary decree on 25 August 1932 and the final decree on 6 March 1933. Thereafter there were some proceedings between the parties in an earlier execution started in the year 1933. These are not material to these appeals. On 8 September 1936 the relevant execution proceeding was started by the appellant (O.C. Execution Case No. 52 of 1936). In this execution the appellant wanted to sell the mortgaged properties which consisted of about 65 hals of land in the Alipur Dears. They were divided into seven lots. The first six lots comprised khas agricultural lands and the seventh lot an extensive waste, intended to be brought under tea cultivation but which could not and even now cannot be planted with tea shrubs on account of statutory restrictions.

(2.) In the course of this execution the said seven lots were sold on 27 September 1936. The appellant purchased them for Rs. 23,025. This sale was however set aside by the Court on 23 March 1937. The Court held that the sale was an irregular one and the price fetched was inadequate. It expressed the opinion, that according to the judgment-debtor's oral evidence at least Rs. 500 per hal was the proper price. After this order the execution case (O.C. Execution Case No. 52 of 1936) stood revived. The Court again issued a notice under Order 21, Rule 66 of the Code for the settlement of the terms of the sale proclamation. Relying mainly upon some conveyances produced by the judgment-debtors the Court came to the conclusion that Rs. 800 per hal for the plots of land mentioned in lots Nos. 1 to 6 and Rs. 400 per hal for lob No. 7 ought to be the advertised price. These conveyances have been exhibited in this case also and we will deal with them when considering the question of the adequacy of the price at which the appellant has purchased. The sum of Rs. 39,574 was inserted in the sale proclamation as the estimated value of the seven lots in accordance with that basis. On 20th August 1937 the sale was held and the decree-holder purchased all the seven lots for Rs. 25,050. The bid sheet (I-76) shows that there were three other bidders, Nazimuddin Muhammad, Bhagwan Das Mahesri and Mahi Kanto Barman and that there was keen competition amongst the bidders. On 17 September 1937 the mortgagor, Akimuddin Choudhury, filed his application under Order 21, Rule 90 of the Code for annulling the sale and on 20 September following the heirs of the puisne mortgagee filed a similar application. Many objections were taken, but the one material for these appeals was formulated in the applications filed by the heirs of the puisne mortgagee in the following form: The bidding at the sale in dispute was caused to be held by the Nazir on 20 August, 1937 at 1 p.m. At that time the work of the Court remained suspended according to law, as it was the time for the Namaz (prayer for Mahomedans.) The bidding at the sale having taken place at that time, the said sale is wholly illegal and without force and effect (I-86).

(3.) A ground in substance, the same but formulated in different language, was mentioned in the application filed by the mortgagor (I-81). The Subordinate Judge, as we have already stated, annulled the sale by his order dated 2nd. December 1938. He found (1) that the sale proclamation and other processes in the execution case had been duly served; (2) that the sale was held between 12.30 P.M. and 2 P.M., during the Namaz recess. The bidding may have commenced before 12-30 P.M., but the properties were knocked down after 12-30 P.M. but before 2 P.M. This according to him was a material irregularity in conducting the sale; (3) that the Nazir notified that he would hold the sale after 2 P.M. When most of the persons who had come to offer bids had left on that assurance he commenced the sale and finished it before their arrival. This was according to him another material irregularity; (4) that the price fetched at the sale was inadequate and the inadequacy was the result of the aforesaid irregularities. The first finding has not been challenged before as by the respondents but the other findings and conclusions have been challenged by the appellant. There cannot be any doubt that the sale would be an irregular one, if the Nazir had told the intending bidders that he would commence the sale after 2 P.M., but held the same before that time after the intending bidders had left the place of sale on his assurance. We will accordingly first sift the evidence bearing upon this point.